1. When does the Acas Code on Discipline and Grievance (the Code) apply?
The Code applies to misconduct and poor performance issues, and individual grievances. Therefore, it covers disciplinary warnings and misconduct and poor performance dismissals. Individual redundancies and the non-renewal of fixed-term contracts on their expiry are expressly excluded from the Code.
2. What procedure should the local authority employer follow if the Acas Code does not apply to the potential dismissal?
Local authority employers should follow a fair procedure, as determined by their own procedures, other legislation and case law. There may be some debate over whether the Code will always apply to long term ill-health dismissals, where the reason for dismissal may not fall into the category of poor performance or misconduct (for example, where absence is for no good reason). However, to avoid any penalty should an employment tribunal find that the Code should have been followed, the basic principles of fairness and procedures as set out in the Code should still be followed.
3. What are the consequences if a party fails to follow the Code?
If the employee brings an employment tribunal claim arising out of the relevant disciplinary or grievance matter and is successful in that claim, in the course of that claim the employment tribunal may find that a party has unreasonably failed to comply with the Code. If so, the employment tribunal has the power to adjust awards up or down by 25 per cent, depending on whether the unreasonable failure was on the part of the employee or the employer. The Code states that "what is reasonable or justified will depend on all the circumstances of the case" and "employment tribunals will take the size and resources of an employer into account" when determining what steps should have been taken under the Code.
4. Does the Acas Code apply to the dismissal of employees during their probationary period?
Dismissal during a probationary period is not really different in nature to any other dismissal and local authority employers should follow the Code if they decide to dismiss an employee on misconduct or poor performance grounds during, or at the end of, a probationary period.
However, this is subject to the fact that there is no free-standing right to bring a complaint before an employment tribunal if the Code has not been applied. Therefore, an employee with less than two years' service and who cannot as a consequence normally bring an ordinary unfair dismissal claim will only have a remedy if they bring a complaint that does not require a period of qualifying service, such as a claim of unlawful discrimination or unfair dismissal on one of the automatically unfair grounds, such as whistleblowing. Accordingly, in some cases an employer may decide not to follow the Code.
Similarly, any disciplinary warning short of dismissal during or at the end of a probationary period should be carried out in accordance with the Code, subject to the considerations above. This will in most cases include a decision to:
- extend the probationary period for a further period
- downgrade the employee (if that decision is based on the probationary employee's misconduct or poor performance).
The procedure need not be the same as the workplace discipline and dismissal procedure that applies to other non-probationary employees, providing it meets the minimum requirements of the Code. However, that procedure should be communicated to explained to the employee.
5. Do local authority employers have to follow the Acas Guidance (the Guidance) on discipline and grievances?
Not strictly, as employment tribunals do not have the power to adjust awards on account of any failure to follow the Guidance nor are they required to have regard to the Guidance. However, local authority employers should still aim to follow the relevant recommendations in the Guidance, as if they do then it should ensure that they have complied with the Code and the principles of fairness.
6. Must local authority employers allow employees to be accompanied at disciplinary or grievance meetings?
Disciplinary meetings: under section 10 of the Employment Relations Act 1999, employees have the right to be accompanied by a companion who is either a fellow worker or a trade union representative, or an official employed by a trade union, to any meeting where a formal warning may be issued or some other disciplinary action could take place. The right does not apply to informal discussions or investigatory meetings. The Code states that the notification of a disciplinary meeting must inform employees of their right to be accompanied, however, to exercise the right, the employee must make a reasonable request to be accompanied.
Grievance meetings: the right to be accompanied under section 10 of the Employment Relations Act 1999 only applies where an employer is dealing with a complaint about a duty owed to the worker which arises from statute or common law (for example, a contractual right). Therefore, a complaint about not getting a pay rise would not trigger the right to be accompanied, if there was no contractual right to a pay rise or the complaint was not based on unlawful discrimination. However, the Guidance makes it clear that it is good practice to allow workers to be accompanied by a colleague or trade union representative at all formal grievance meetings. Unlike the disciplinary procedures, the Code does not require employers to tell employees that they have the right to be accompanied at grievance meetings, however, such an obligation to tell employees should be implied. As with disciplinary meetings, the right to be accompanied will only apply if the employee makes a reasonable request.
7. What is the companion's role at disciplinary and grievance meetings?
The companion must be allowed to put and sum up the employee's case, respond on behalf of the employee and confer with the employee. However, the companion does not have the right to answer questions on the employee's behalf, address the meeting if the employee does not wish it or to prevent the employer from explaining their case.
8. Can employees call witnesses at disciplinary and grievance meetings?
If it is a disciplinary meeting, the Code states that employees should be given a "reasonable opportunity" to call witnesses and if they intend to do so they should give advance notice of their intention. What is a reasonable opportunity will depend on each case.
Unlike disciplinary hearings, the Code does not include any provisions that directly relate to the attendance of witnesses at grievance meetings. Notwithstanding that, in certain cases it may be appropriate to consider allowing employees to call witnesses at a grievance hearing, where those witnesses will assist in allowing the employee to put their case and for the parties to understand the issues. However, in many cases witnesses will not be necessary at grievance meetings as the issues in the grievance will have been established in the investigation process.
9. What should a local authority employer do if an employee fails to attend a disciplinary or grievance meeting?
The Code states that employees and their companions must make "every effort" to attend disciplinary and grievance meetings. Where an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause, the employer should make a decision on the evidence available. The Code does not contain the same provision where an employee fails to attend a grievance meeting. In such cases a local authority employer may need to investigate whether the employee still intends to pursue the grievance, or go ahead and make a decision on the evidence available. However, each situation will depend on its own facts and local authority employers should seek advice on their particular case.
10. What if an employee raises a grievance during a disciplinary process?
The local authority employer will need to decide whether to suspend the disciplinary process to deal with the grievance, or where the issues are related, to deal with the grievance concurrently with the disciplinary process. Amongst other examples, the Guidance indicates that it may be appropriate to suspend the disciplinary process where the grievance relates to the conduct of the manager holding the disciplinary meeting. However, where employees make an invalid point, it would not be appropriate to suspend disciplinary proceedings.
11. What about collective grievances?
The Code does not apply to collective grievances, and those grievances should be dealt with in accordance with the local authority employer's own procedures. A collective grievance is one raised on behalf of two or more employees by a trade union or appropriate workplace representative.
12. What should local authority employers do if a former employee raises a grievance?
The Acas Code does not include procedures that apply specifically to former employees. However, where the grievance is about an issue that could form the basis of an employment tribunal claim and the grievance has been raised within the relevant time limit for bringing the employment tribunal claim, local authority employers might choose to err on the side of caution and where practicable deal with the grievance in accordance with the Code. That will avoid the risk of a tribunal exercising its discretion to uplift an award by 25 per cent, should the employee succeed in a subsequent claim. Further, the investigation of the grievance may itself lead to a resolution of the matter and, therefore, avoid a claim.
13. Will an employment tribunal award be increased or decreased if a party refuses to take part in mediation?
No. Although the Code emphasises the benefits of mediation, the references to mediation are in the Code's foreword, which does not form part of the Code itself. Therefore, if the employer or employee fails to agree to mediation, a tribunal cannot view that as a failure to comply with the Code and therefore cannot make any adjustment to awards.
14. What impact does the Code have on a local authority employer's own procedures?
Local authority employers will have checked their procedures against the Code to ensure that they comply with the requirements of the Code. Where a local authority employer's policies contain provisions better than those in the Code, the local authority should seek to follow those policies.