Important Changes to Disciplinary Procedures

Stuart Swan
3rd Apr 2009

Under the old rules an employer had to follow the ‘standard’ 3 step procedure of writing to the employee, holding a meeting and giving the right of appeal against the resultant decision. The new ACAS Code stipulates that the employer must follow this same procedure as a minimum to show that it has followed a fair process.

 

The current regulations on discipline in the workplace are being replaced with the new ACAS Code of Practice 1 Disciplinary and Grievance Procedures. This update highlights some of the issues surrounding disciplinary processes.

 

In some respects there will be little practical change, however, there are some differences which employers need to know about.

 

Disciplinary Proceedings

Under the old rules an employer had to follow the ‘standard’ 3 step procedure of writing to the employee, holding a meeting and giving the right of appeal against the resultant decision. The new ACAS Code stipulates that the employer must follow this same procedure as a minimum to show that it has followed a fair process.

 

Under the old rules, in exceptional cases involving the dismissal of an employee, the employer could follow a ‘modified’ 2 step procedure of writing to the employee dismissing them and giving the right of appeal against the decision. The new Code has no modified procedure.

 

The Code states that employers should carry out any necessary investigations to establish the facts of the case, which may involve meeting with the employee and/or gathering appropriate evidence. In most cases it is recommended that an investigatory meeting with the employee is held as part of establishing the facts of the case.

 

Hearings

The Code stipulates that an employer should explain the complaint against the employee and go through the evidence that has been gathered. Employees should be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. Of course, internal disciplinary hearings are not courts of law and employers do not have to prove ‘beyond reasonable doubt’ disciplinary allegations. However, as employees now have the ‘new right’ to call witnesses, managers conducting disciplinary hearings may feel as if they are conducting a criminal trial! The employee must give advance notice of their intention to call witnesses, and if they do, it is our best practice recommendation that appropriate advice is sought.

 

An employer is under an obligation to satisfy themselves, based on the evidence gathered and considered, that the employee was indeed guilty of the act or acts complained of. In the case of conduct dismissals for example, an employer requires to have a genuine, honest belief, based on reasonable grounds following sufficient investigation, that an employee has committed the alleged act or acts of misconduct in order to justify dismissal.

 

If an employee is ‘persistently unable’ or ‘unwilling’ to attend a disciplinary hearing ‘without good cause’, the employer is able to make a decision on the evidence available. At this stage we can but speculate as to how Employment Tribunals will interpret this, but it is suggested that an employee who refuses to attend, say two hearings without good cause, may be deemed to have been persistently unwilling to attend.

 

Failing to follow the Code

Under the old rules if an employer failed to follow the standard 3 step procedure, and the dismissal was found to be unfair, it was open to the Tribunal to increase compensation awarded by between 10% and 50%. Under the new Code where an employer or employee fails to follow the Code ‘unreasonably’, awards can be increased or decreased by up to 25% as a result of that unreasonable failure.

 

It remains to be seen how the Employment Tribunals and Courts will apply the new rules. It is our intention to provide you with further email updates commenting on important developments in case law that have practical implications for your business.

 

You can access the ACAS Code of Practice 1 Disciplinary and Grievance Procedures by clicking here.

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