Dispute resolution

Background

On 6 April 2009 the Employment Act 2008 changed the way that disciplinary and grievance matters are handled, by replacing the statutory dismissal, discipline and grievance procedures (the statutory procedures) with a new acas Code of Practice on handling discipline and grievances. Local authority employers will have their own disciplinary and grievance procedures that are compliant with the Statutory Procedures, and those same procedures should in nearly all cases satisfy the requirements of the Code.

The Acas Code

The Code (the full name of which is ‘Acas Code of Practice 1: Discipline and Grievance') is intended to be "light touch" so that employers and employees can within its framework take a flexible approach to handling disciplinary and grievance matters. A full copy of the Code can be found on the Acas website. The Code is also accompanied by comprehensive advisory guidance.

acas website

The Code sets out five key elements of fairness being that:

  1. matters should be raised and dealt with promptly;
  2. parties should act consistently;
  3. employers should carry out the necessary investigations to establish the relevant facts;
  4. employers should inform employees of the basis of the problem and allow the employee to put their case; and
  5. employees should be allowed to be accompanied at any formal disciplinary or grievance meeting.

Disciplinary matters

The Code sets out the process for disciplinary matters, which is:

  1. establish the facts of each case;
  2. inform the employee of the problem;
  3. hold a meeting with the employee;
  4. at that meeting, allow the employee to be accompanied;
  5. decide on the appropriate action; and 
  6. provide the employee with an opportunity to appeal.

Aside from the general principles of fairness and the procedure set out above, employers should note the following points, although many of them should be reflected in local authorities' procedures and practices:

  • The Code only covers misconduct issues, poor performance and grievances. Therefore, it will cover disciplinary warnings and misconduct and poor performance dismissals, but not dismissals for individual redundancies and the non-renewal of fixed-term contracts on their expiry. However, in all cases employers should follow a fair procedure, as determined by other legislation and case law.
  • In misconduct cases the Code provides that where practicable, different people should carry out the investigation and the disciplinary hearing.
  • Unlike the Statutory Procedures, the Code advises that the notification of a disciplinary meeting must tell employees about their right to be accompanied.
  • Employees and the person that accompanies them are obliged to make "every effort" to attend the meeting.
  • 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. 

Grievance Matters

The procedure in the Code for dealing with grievances mirrors that for disciplinary matters and is:

  1. the employee should set out in writing the nature of the grievance;
  2. the employer should hold a meeting with the employee;
  3. the employer must allow the employee to be accompanied at that meeting by a colleague or trade union representative;
  4. the employer must decide on appropriate action; and 
  5. the employer must allow the employee to take the grievance further if not resolved.

As with the disciplinary procedures, employees must make "every effort" to attend meetings although 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. The Code states that employees must submit grievances "formally" and in writing.

The grievance provisions do not apply to collective grievances raised on or behalf of two or more employees by a trade union or workplace representative under a collective grievance process. In such cases the collectively agreed processes should be followed. Further, where there are overlapping grievance and disciplinary cases, disciplinary cases may be suspended in order to deal with the grievance, or if both cases are related it may be appropriate to deal with the issues together.

Discretionary power to adjust awards

Where the Code applies, tribunals will have a discretionary power to adjust awards by up to 25 per cent if they consider that an employer's or employee's failure to comply with the Code was unreasonable. The Code does not offer any specific guidance for employment tribunals on whether a party should be found to have unreasonably failed to comply with the Code and whether they should exercise their power to adjust awards. All the Code states is 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. For local authorities as large employers we anticipate the expectation will be that they will be able to comply with the Code, unless there are highly exceptional circumstances.

Acas conciliation services

On the introduction of the Code, acas's conciliation duties changed. Under the old regime, Acas was under a duty to conciliate in cases before any tribunal claim was issued. However, after the issue of the claim, in many cases including unfair dismissal claims, acas's duty to conciliate was limited to a fixed period. That regime often caused difficulties as Acas was unable to prioritise and effectively allocate resources to appropriate pre-claim cases. Further, the fixed conciliation period made it difficult for parties to settle claims late on in proceedings, especially where one of those parties was unrepresented.

Under the regime now in place, acas' duty to conciliate in pre-claim cases is amended to a statutory power to offer such services. Although on the face of it that would appear to reduce Acas' duties, the regime will allow Acas to focus its resources more effectively on appropriate cases.  Fixed conciliation periods have also been repealed.

Acas guidance

To accompany the Code, acas have produced a comprehensive guide to handling disciplinary and grievance matters. Tribunals will 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 it is anticipated that in many cases tribunals will refer to the Guidance to determine whether the employer‘s handling of misconduct, poor performance and grievance matters complies with the general principles of fairness. For that reason, it is recommended that when handling disciplinary and grievance matters, employers should read the relevant section of the Guidance and ensure that they comply with the recommendations

The guidance - on the acas website

The Guidance is split into disciplinary and grievance sections, and to make it easy to navigate with the Code, is set out with appropriate comments and guidance alongside extracts from the Code.

Key points in the Guidance are:

  • Mediation: to reinforce the emphasis on resolving disputes, the Guidance includes a brief commentary on how mediations operate, and suggestions on when they might be appropriate, for example for resolving grievances.
  • Sample letters: sample letters are provided that employers can use as models for dealing with disciplinary and related issues. Those letters include: a notice of a disciplinary meeting, a notice of a final written warning and a letter to a worker's GP to enquire into the cause of a worker's absence.
  • The right to be accompanied: the Guidance comments that on a strict interpretation, the right to be accompanied at grievance matters as set out at 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.

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