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The ACAS Code And Guidance – Important Things To Know – Employee Rights/ Labour Relations



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What are the differences between the ACAS Code of Practice and
ACAS guidance on disciplinary and grievance procedures?

It is fairly likely that all employers will come to hear of
‘the ACAS Code of Practice’ and ‘ACAS
Guidance’ on disciplinary and grievance procedures. These
could be mistaken for being references to the same thing,
particularly as they largely deal with the same issues, but they
are in fact distinct and different things. 

Because the Code and Guidance on disciplinary and grievance
procedures overlap it can be difficult to understand the potential
implications of following or not following them.

The statutory code

There are five statutory Codes of Practice published by ACAS.
This article focuses on the ACAS Code of Practice on disciplinary
and grievance procedures (the Code). The Code was issued under
section 199 of the Trade Union and Labour Relations (Consolidation)
Act 1992 (TULRCA), and last updated in 2015. It is 47 paragraphs
long and can be found here, along
with the other ACAS statutory Codes of Practice.

The Code provides fundamental principles for employers and
employees to abide by to help ensure fair and reasonable processes
take place which are intended, in turn, to help reach fair and
reasonable outcomes. The sections of the Code assert the importance
of fairness and consistency and sets out the rights of employees
during these processes.

Non-statutory guidance

ACAS provides 
guidance
, by way of step-by-step guides to disciplinary and
grievances processes, specific guidance on how to conduct an
investigation or an appeal and guidance on the basics of a fair
dismissal (the Guidance).

The ACAS Guidance was not created under a statutory provision or
agreed by Parliament and should be seen as a ‘best
practice’ manual.

What are the differences?

The Code clearly establishes the core principles of a
disciplinary and grievance process. For example, the sections of
the Code (at the time of writing) are as follows:

For disciplinary processes:

  • Establish the facts of each case

  • Inform the employee of the problem

  • Allow the employee to be accompanied at the meeting

  • Decide on appropriate action

  • Provide employees with an opportunity to appeal

  • Special cases, including cases which involve criminal charges
    or convictions

For grievance processes:

  • Let the employer know the nature of the grievance

  • Hold a meeting with the employee to discuss the grievance

  • Allow the employee to be accompanied at the meeting

  • Decide an appropriate action

  • Allow the employee to take the grievance further if not
    resolved

  • Overlapping grievance and disciplinary cases

  • Collective grievances (making clear that the Code does not
    apply to collective grievances)

Where the Code establishes a framework of fundamental
principles, the Guidance adds more detail about, for example, how
to fairly undertake and use investigations as part of the
process.

In an ideal world an employer would ensure they followed the
Code and the Guidance and doing so will reduce the likelihood that
they will be found to have acted unfairly. Crucially, because the
Code has a statutory footing it requires any tribunal deciding on
the fairness of a disciplinary or grievance process to take the
Code into account. A tribunal judge is not bound to have regard to
the Guidance.

In addition, if an employer is found to have not followed or to
otherwise have breached the Code then a tribunal can increase any
monetary award to an employee by up to 25 percent. Conversely, if
an employee is shown to have failed to follow the Code, (for
example, by refusing to attend a disciplinary meeting or to appeal
against dismissal) even if they are found to have been unfairly
dismissed, their total monetary award can be reduced by up to 25
percent.

What does this mean for employers in practice?

Employers must keep the fundamentals of the Code in mind and
strive to meet them whenever a grievance or disciplinary process is
undertaken. A disciplinary or grievance procedure policy that was
drafted with the Code as the starting point will usually put an
employer in a good position to deal with such matters as they
arise.

Whilst following the Guidance is preferable, it is unrealistic
to expect all employers to be able to comply with the level of
detail set out within it. This may be because of the limitations of
resources or because the particular circumstances of a matter does
not easily fit with the approach taken in the Guidance.

The Guidance can also be confusing. For example, the step by
step guides both state (at Step 4) that copies of all written
evidence should be shared with the employee. In reality employers
may not want to disclose all of the evidence gathered as part of a
grievance because that information is sensitive or confidential. It
should also be remembered that if grievance outcomes require
action, it is for the employer to take appropriate action based on
the evidence found in the grievance and the original complainant
will not be told of the specific action where this involves action
against a colleague.

In contrast, because disciplinary action may lead to sanctions
including dismissal, an employer is under a higher duty to disclose
all of the evidence that goes into making that decision to the
employee, save for special circumstances.

It also means that if an employer is accused of not following
the ‘ACAS guidelines’ it pays to ask the accuser to be
specific. If the complaint relates to failing to follow the
Guidance this is less concerning than an accusation of not
following the Code.

It is also worth underlining the point that employees are also
bound to follow the Code which can be useful, for example, in
reminding employees that under the Code they should make every
effort to attend the disciplinary meeting and provide the name of
their companion in advance.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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