All Change for Disciplinary Procedures at Work

Readers may remember the fanfare which accompanied the current statutory dispute procedures which were introduced in October 2004. Since then, employers and lawyers have struggled to deal with some of the complexities which have been thrown up by the regimented procedures and a detailed review showed overwhelmingly that the system was not working.

As a result, new procedures will replace the existing framework with effect from 6 April this year.

A revised ACAS code of practice will be brought into force and this code will apply to misconduct, poor performance and capability dismissals only. It will not therefore apply to dismissals by reason of redundancy or expiry of fixed term contracts. The relaxation in these areas is designed to give employers more flexibility when dismissing staff on redundancy grounds and where employment for a specific task (e.g. maternity cover) has been completed.

Rather than the current prescriptive model, the code is in many ways similar to what is generally recognised as good practice so that employers who are contemplating dismissal or other disciplinary action on grounds of conduct or capability should carry out the following steps:-

• Investigate and establish the facts.
• Let the employee know.
• Have a meeting to discuss the issues.
• Allow the employee to be accompanied at such meeting.
• Take appropriate action.
• Allow an appeal.

These principles are not new and many would say amount to just plain common sense.  Where any employee is "persistently" unable or unwilling to attend a disciplinary meeting "without good cause" a decision can be made on the available evidence. This would allow employers to carry on with the dismissal process where an employee deliberately goes off sick to avoid the inevitable disciplinary action. The current practice of going off work on "stress grounds" is often a headache for employers who are keen to deal with and discipline  consistently troublesome employees.

Likewise, the grievance procedure will be amended so that a similar process will be followed which requires the employee to let the employer know the nature of the grievance, attend a meeting and thereafter a right of appeal would be available.

So what has changed?

• No longer a right of appeal against all forms of written warnings.
• A disciplinary process may be temporarily suspended to allow a grievance to be heard or if they are related, the issues may be dealt with together.
• Failure to comply with the code would attract an upward or downward adjustment of any award by up to 25% (this is currently between 10% and 50%).
• There is no longer a requirement to hear grievances from employees who have already left.
• There is no longer the modified two step grievance and disciplinary procedures.
• Missing a step will not render a dismissal automatically unfair which is currently a bugbear for employers who simply commit a technical breach of the procedures and find themselves without a fully sustainable defence at Tribunal.
• Significantly, there will no longer be an automatic extension of time for filing a claim where an appeal is pending. The time limit will revert back to the strict 3 months.

What should employers do now?

Employers should audit their current disciplinary, dismissal and grievance policies and procedures before 6 April to ensure that these reflect the spirit of the new ACAS code which  also contains a specimen disciplinary procedure. After this date, the code will become the key source of guidance for Tribunals in determining the fairness of dismissals.  There will also be some transitional provisions which will come into place in order to deal with disciplinary and grievance matters which are ongoing at the date of the change in the law.

We will be running a seminar shortly to discuss these changes in greater detail and to assist with the practical requirements.

To discuss any of the issues raised in this update or to reserve a place on the seminar, please contact Paul Grindley on 0113 399 3424 or email paulgrindley@keeblehawson.co.uk.