The Women and Equalities Select Committee reported earlier this year that sexual harassment in the workplace is “widespread and commonplace”. It recommended that the government... Read more
The Women and Equalities Select Committee reported earlier this year that sexual harassment in the workplace is “widespread and commonplace”. It recommended that the government... Read more
Government Publishes LGBT Action Plan In July 2017, the government launched a national survey of LGBT people. It received more than 108,000 responses which have... Read more
The ACAS Code of Practice on Discipline and Grievance Procedures (the Code) sets out best practice on how grievance and discipline should be handled. Paragraph 1 of the Code says that, “Disciplinary situations include misconduct and/or poor performance. If employers have a separate capability procedure they may prefer to address performance issues under this procedure. If so, however, the basic principles of fairness set out in this Code should still be followed, albeit that they may need to be adapted. Grievances are concerns, problems or complaints that employees raise with their employers”.
As soon as you raise a grievance with your employer or your employer starts disciplinary action against you, you must turn to the provisions of the Code. It sets out principles for handling disciplinary and grievance situations at work in 47 paragraphs. It is a statutory document and any failure to adhere to it by you or your employer will result in financial penalties if the matter goes before the employment tribunal. The current version of the Code was laid before both Houses of Parliament on 16 January 2015 and came into effect by order of the Secretary of State on 11 March 2015 replacing the 2009 Code.
The Code is accompanied by a guide to Discipline and Grievances at work (the Guide), which provides directions for you and your employer on how to address discipline and grievance at work. Another relevant ACAS guide for discipline and grievance is Conducting Workplace Investigations. Employment Tribunals do not take these guides into account when determining issues of fairness and reasonableness, but they are very useful in helping you make sure that you fulfil your obligations and that your employer applies the Code correctly in discipline or grievance proceedings.
The Foreword to the Code is not part of it, so the recommendations for separate procedures for complaints such as bullying, harassment and whistle blowing will not be considered by a Tribunal so long as the main tenets of the Code are adhered to. The directions given about keeping written records of discipline and grievance procedures however, are very important and discussed further below.
The Code is issued under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992). The Code itself is not legally binding and so it does not give a free standing right to bring a claim against an employer who breaches it, however under section 207 TULRCA 1992, it is admissible evidence before an Employment Tribunal. Section 207A provides that compensation can be adjusted by up to 25% if you or your employer breach any of the provisions of the Code. This means that you can put breaches before the Tribunal in your claim.
The Code applies to employees during disciplinary and grievance proceedings. If you are not an employee, it does not apply to you. It also does not apply to;
In Local Government Yorkshire and Humber v Shah  the Employment Appeal Tribunal said that where an employer has failed to comply with the Code, only employees, and not workers, can be awarded the compensation uplift of up to 25%.
Section 98(2) ERA 1996 lists the situations in which your employer can fairly dismiss you as;
Redundancy is specifically removed from the Code, but your employer must apply the Code in the remaining four reasons for dismissal. It covers matters concerning;
The Code demands that all these procedures are conducted fairly. Fairness means;
Paragraph 2 of the Code says that, “Fairness and transparency are promoted by developing and using rules and procedures for handling disciplinary and grievance situations. These should be set down in writing, be specific and clear. Employees and, where appropriate, their representatives should be involved in the development of rules and procedures. It is also important to help employees and managers understand what the rules and procedures are, where they can be found and how they are to be used”.
This is also a statutory right in section 1 of the Employment Rights Act 1996 (ERA 1996) which gives you the right to a written statement of terms and conditions of employment. This is called a Section 1 Statement. Section 3 ERA 1996 says that the Section 1 Statement must include the grievance rules and procedure which apply to your employment, and section 4 says that you should be notified of any changes to the section 1 statement within one month of those changes. Not only must your employer provide you with the written rules about discipline and grievance in the workplace, those rules must be precise, understood, and accessible. You and your colleagues should be involved in developing those rules where appropriate. If your employer disciplines you or goes through a grievance procedure without reference to the rules, or does something that is not part of policy or procedure, it will be a breach of the ACAS Code. If your employer does not give you a written statement of employment particulars within two months of you starting employment it will additionally be a breach of your statutory rights.
Pages 11-13 of the ACAS Guide have recommendations about disciplinary policies and make suggestions as to what a disciplinary policy and procedure should contain. The Appendices have sample grievance and disciplinary procedures.
The Foreword advises that your employer should keep written records of disciplinary and grievance proceedings. Even though the Foreword is not part of the Code, case law has shown that failure to record a material fact will be considered by the employment tribunal as an unreasonable failure to follow the code.
ACAS advises employers that; “Written records are crucial in disciplinary and grievance matters. There should be records of the various stages of the procedure, including of: the complaint; the employee’s defence; findings made; actions taken and reasons for them; whether there was an appeal and its outcome; any grievances raised during the procedure; any subsequent developments; notes of any formal meetings.
Given that disciplinary action, especially if it leads to a dismissal, can lead to a tribunal situation, it’s vital that employers can produce a proper paper trail that establishes the validity of their disciplinary procedures. Part of this is being able to demonstrate that an employee has been treated fairly and in a way that’s consistent with the treatment of other employees in comparable situations.
Copies of meeting records should be given to the employee including copies of any formal minutes that may have been taken. In some circumstances, such as to protect a witness, the employer might be justified in withholding some information.
Employers must keep personnel records in accordance with the rules set out in the Data Protection Act 1998. Such records are confidential, but individuals concerned have the right to request and have access to certain personal data”.
This is because if significant information is wrong then the processes based on it can also be wrong. The only way you can prove this is by keeping detailed records of the proceedings yourself. Record keeping is covered on page 15 of the Guide. The ACAS advice on record keeping is geared towards employers, however the Employee Rescue Guide on Surviving a Disciplinary Investigation explains the ACAS guidelines on record keeping as they apply to you as an employee, and provides comprehensive resources and guidance on record keeping.
Paragraphs 5 to 31 of the Code deal with disciplinary proceedings and set out the four key principles that your employer should apply. Your employer must;
Section 94 ERA 1996 gives you the right not to be unfairly dismissed. The Code goes hand in hand with Section 98 ERA 1996 which allows your employer four reasons to discipline or dismiss you. In selecting any of these reasons your employer must act fairly, and provide evidence of acting fairly. If you tell the Employment Tribunal that your dismissal was unfair (through your Employment Tribunal claim), under section 98(4) the Employment Tribunal must consider whether in the circumstances, including the size and administrative resources of your employer’s business, your employer acted reasonably in treating it as a sufficient reason for dismissing you. This includes considering whether the provisions of the Code were properly applied.
Your employer must carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. An investigation is a fact-finding mission. No more and no less. The purpose is to find out on the balance of probabilities whether there is a case to answer. It is not an exercise to find out whether you are “guilty” or not. Page 17 of the Guide addresses the investigation. See also Your rights in a disciplinary investigation
Relevant Employee Rescue Guide – Surviving a workplace investigation
The ACAS Code emphasises that different people should carry out the investigation and disciplinary hearing. To meet the requirements of fairness in section 98 ERA 1996, your employer must carry out an investigation of the disciplinary matters without undue delay in order to establish the facts. The requirements of this investigation was explained in the case of British Home Stores v Burchell (1980). This is known as the Burchell Test.
The Employment Tribunal uses an objective test to decide whether the investigation fell within the band of reasonable responses. In order to fall within the band of reasonable responses, the person conducting the investigation should be impartial and must therefore not be the same person conducting the disciplinary hearing. The Guide suggests on page 37 that external consultants can be used for the investigation. See also Your rights in a disciplinary investigation and Your rights in disciplinary action.
The Code says that the investigation meeting is exactly that. An investigation meeting. It should not be turned into a disciplinary hearing resulting in disciplinary action. The Guide to the Code says that disciplinary action should not be considered at an investigation meeting. If it becomes clear that formal disciplinary action may be needed then this should be dealt with at a formal meeting at which you will have the statutory right to be accompanied. There is no statutory right to be accompanied to the investigation meeting, but such a right may be allowed under your employer’s own procedure. There is no harm in asking your employer to be accompanied to the investigation meeting. The Guide says at page 17 that your employer should treat you in a fair and reasonable manner during the investigation. It recommends that your employer keeps an open mind and look for evidence which supports your case as well as evidence against. You should be given advance warning and time to prepare for the meeting. See also The Investigation Process, and Your rights in a disciplinary investigation and Your rights in disciplinary action.
Suspension should be with pay, and the period should be as brief as possible. It should be kept under review and your employer should make it clear that suspension is not disciplinary action. In Mezey v South West London and St Georges Mental Health NHS Trust , the Court said that suspension even with pay is not a neutral act. This means that an employer could be liable if an investigation is not carried out before making the decision to suspend. If you are suspended without pay, that would be disciplinary action taken against you and your employer would be in breach of the Code. Suspension is briefly addressed on pages 17 and 18 of the Guide. See also How to deal with suspension at work
Relevant Employee Rescue Guide – Surviving a workplace suspension
If it is decided that there is a disciplinary case to answer, you should be notified of this in writing with enough information about the alleged misconduct or poor performance and its possible consequences to enable you to prepare your defence at a disciplinary meeting. Your employer must provide copies of any written evidence, including witness statements, with the letter. The letter should also give details of the time and place for the meeting and let you know that you have a right to be accompanied. The Code calls the disciplinary hearing a disciplinary meeting. We use the word “hearing” because that meeting is your opportunity for your side of the matter to be heard. Up until this point, you would have had the allegations against you investigated and questions asked of you. It is only at the hearing that your version is heard and taken into account.The disciplinary hearing is addressed on pages 18-22 of the Guide. See also Understanding the disciplinary hearing, and Capability and Disciplinary Action and Your rights in disciplinary action.
Relevant Employee Rescue Guide- The Disciplinary Hearing; Understanding the process and surviving it
You should be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. You should be given an opportunity to raise points about any information provided by witnesses. You and your employer should give each other advance notice if either of you intends to call witnesses. Witnesses and evidence are addressed in detail in Surviving a workplace investigation and The Disciplinary Hearing; Understanding the process and surviving it.
Your right to be accompanied to a disciplinary or grievance hearing is also a statutory right contained in Section 10 of the Employment Relations Act 1999. It is a right to be accompanied, and not a right to be represented. The Code recommends that your companion takes a full part in the proceedings. You have a statutory right to have the meeting postponed if your chosen companion is not available . The alternative meeting must be held within 5 working days from the day after the cancelled meeting. The Guide discusses the right to be accompanied on pages 23-27. See also Your right to be accompanied to discipline and grievance meetings
After the hearing, your employer must decide whether or not disciplinary or any other action is justified and inform you in writing. The Code says that you should not normally be dismissed for a first act of misconduct. You should be given a chance to improve by the use of progressive warnings. A warning should last for a set period, after which it should be disregarded for disciplinary purposes. However, in Airbus UK Ltd v Webb , the Court of Appeal said that an employer will not necessarily act unreasonably if they rely on an expired warning. The Court said that this would apply in cases where an employee had been dismissed for misconduct which itself, justified the dismissal, and the presence of a lapsed warning was used only when considering mitigating circumstances. The Guide addresses disciplinary sanctions on pages 27-33. See also Disciplinary sanctions against you at work, and The Misconduct process
Where you feel that disciplinary action taken against you is wrong or unjust you should appeal against the decision. Appeals should be heard without unreasonable delay and at an agreed time and place. You should let your employer know the grounds for your appeal in writing. Your appeal should be heard impartially by a manager who has not been involved in the case. You have a right to be accompanied to the appeal hearing. The Guide addresses appeals on pages 34-35.
It is advisable to discuss disciplinary action against a trade union representative with an official employed by the trade union at an early stage. Trade Union Representatives have statutory protection in disciplinary action and against dismissal for reasons connected to their trade union activities. The Guide addresses disciplining trade union representatives on pages 19 and 36.
Relevant Employee Rescue Guide –
Where you are charged with, or convicted of a criminal offence this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on your suitability to do the job as well as your relationship with your employer, work colleagues and customers. Criminal charges or convictions are addressed on pages 36 and 37 of the Guide. See also Working or finding a job with a criminal record and Surviving a criminal charge, conviction, caution or police investigation at work
Relevant Employee Rescue Guides – How to survive a criminal charge. conviction, caution or police investigation at work
Grievances are defined as “concerns, problems or complaints that employees raise with their employers”. You can raise a grievance about things like your terms and conditions of employment, health and safety, workplace relationships, new working practices, organisational changes, equality, discrimination, bullying and harassment, and whistleblowing. Grievances are addressed on pages 40-52 of the Guide. See also How to raise a grievance at work
Paragraph 32 of the Code says that you have the responsibility of raising a grievance;
“If it is not possible to resolve a grievance informally, employees should raise the matter formally and without unreasonable delay with a manager who is not the subject of the grievance. This should be done in writing and should set out the nature of the grievance”.
This means that you cannot assume that your employer knows you have a problem. You must always raise a written grievance if at all possible, before proceeding to the Employment Tribunal. If you have the opportunity to raise a grievance and do not do so, the tribunal can reduce your compensation by up to 25%.
The Code follows the same key principles in grievances as it does for disciplinary procedures, as follows;
Relevant Employee Rescue Guides – Grievances
If you raise a grievance during the disciplinary process, your employer should put the disciplinary process on hold and deal with the grievance. If the issues in your grievance are linked with the disciplinary process, your employer can deal with both at the same time. The Guide recommends at page 22 that;
“When an employee raises a grievance during the meeting it may sometimes be appropriate to consider stopping the meeting and suspending the disciplinary procedure – for example when:
The Code does not apply where a grievance is raised on behalf of two or more employees by a representative of a recognised trade union or other appropriate workplace representative. These grievances should be handled in accordance with any negotiated collective grievance process.
Code of Practice 1 – Discipline and Grievance
Code of Practice 2 – Disclosure of Information to Trade Unions
Code of Practice 3 – Time off for trade union duties and activities
Code of Practice 4 – Settlement Agreements
Code of Practice 5 – Handling flexible working requests in a reasonable manner
This resource is published by Employee Rescue Limited. Please note that the information and any commentary on the law contained herein is provided for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. Employee Rescue accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this publication.
Further specialist advice should be taken before relying on the contents of this publication. You can send an e-mail to email@example.com for such specialist advice if required.