There is a new discipline and grievances regime coming into force this month and employers who fail to follow a new code of practice will be liable to pay more compensation.

Both the ‘old’ statutory dismissal procedures and grievance procedures will go. Employers will be encouraged to comply with the newly revamped ACAS Code of Practice on Disciplinary and Grievance Procedures.

The code sets out key principles and is not a substitute for the employer having their own disciplinary and grievance procedures. The code will provide guidance on what is expected from all in situations where a disciplinary issue or grievance arises. The code stresses the need for fairness and transparency and the use of rules and procedures. Indeed, employment tribunals will note what is “fair and reasonable” when deciding cases and will consider whether the employer has followed the principles set out in the code.

There is no prescriptive definition of a disciplinary situation. The code anticipates dealing with issues relating to poor performance and misconduct, but makes the point that some employers may have separate policies to deal with conduct.

The code sets out key principles regarding discipline:

• Employers are responsible for carrying out any investigations necessary to establish the facts;

• Employers should inform employees of the problem and provide them with an opportunity to put their case in response before decisions are reached;

• The code repeats details of an employee’s statutory right to be accompanied where employers should allow employees to be accompanied at any formal disciplinary meeting;

• Following the meeting, employers must decide whether any disciplinary action is justified and inform the employee in writing of the decision;

• Employers should allow employees to appeal against any formal decision; and

• Notify the employees in writing of the outcome of an appeal hearing.

The code states that grievances are concerns, problems or complaints that employees raise with their employers. Here, the code says that:

• If it is not possible for the employee to resolve the grievance informally, employees should raise the matter formally, in writing.

• On receipt of a grievance, the employer should arrange a formal meeting without unreasonable delay. The employee should be given the opportunity to say how they think it should be resolved.

• The code mirrors the statutory rules and recommends that where an employee’s grievance relates to a complaint about a duty owed by the employer, then the employee has the right to be accompanied by a work colleague or a union representative.

• Following the meeting, the employer needs to decide whether any further investigation is required.

• Where an employee is unhappy with the outcome, they should be allowed to appeal and set out the grounds for their appeal without delay in writing.

An employee will be able to bring a claim in the tribunal without having first raised a grievance with the employer. Also, a tribunal will be able to find that a dismissal is unfair on procedural grounds alone, but reduce or eliminate the employee’s compensatory award to reflect the likelihood that a dismissal would have gone ahead where a fair procedure had been followed.

Where tribunal proceedings are issued, an employer’s failure to observe the requirements of the code may result in an employment tribunal increasing the compensation payment to an employee by up to

25 per cent. Similarly, where an employee unreasonably fails to comply with the code, the amount of compensation awarded may be reduced by up to 25 per cent.

More information at www.acas.org.uk/index.aspx?articleid=1364

Gareth Edwards is a partner in the employment team at Veale Wasbrough Lawyers - gedwards@vwl.co.uk