In April 2009 the statutory procedures will be repealed by the Employment Act 2008, the main changes will be:

• Employees will not need to raise a grievance before making a tribunal claim;
• There will be no requirement to hear grievances from employees once they have left employment
• Extensions of time for tribunal applications will revert back to “reasonably practicable” and “just and equitable” time frames
• Employees will no longer be able to bring a claim for automatic unfair dismissal for failure to follow procedure.
• Tribunals will be able to make an adjustment for any tribunal awards by up to 25% for failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures

In light of the Employment Act 2008 ACAS have revised the Code of Practice on Disciplinary and Grievance Procedures, the new code can be found following the link below, however be aware that the code is stamped with “Draft” all over it as it is still waiting Parliamentary approval:
 
http://www.acas.org.uk/CHttpHandler.ashx?id=961&p=0

When dealing with disciplinary matters employers should:

• Raise and deal with issues promptly
• Act consistently
• Investigate issues to establish the facts
• Inform the employee of the problem
• Give employees the opportunity to put their case
• Give employees the right to be accompanied
• Give employees the right of appeal against any disciplinary sanction

The revised code also has the following “new” features which must be considered by employers when handling disciplinary matters:

• Suspend an employee:
  • only where “necessary”
  • clear that suspension is not considered to be disciplinary action
• Employees must be informed of any disciplinary outcome in writing
• Where an employee wishes to appeal they must provide written reasons
• Companies should consider the use of mediation to resolve both disciplinary and grievance issues

In addition to the revised Code of Practice, ACAS have also produced a lengthy guide on the revised procedures.

The statutory dismissal procedure will still apply from 6th April 2009 if on or before 5th April the statutory procedure has begun. Likewise the statutory grievance procedure will continue to apply where an action taken which formed the basis of the employee’s complaint occurred before the 6th April 2009.

Almost all Disciplinary and Grievance procedures will need updating in light of the forthcoming changes.

Policy Upkeep

Discipline and Grievance Procedures

The existing procedures are about to be repealed and ACAS have produced revised procedures in light of this, the automatic unfair dismissal for failure to follow the disciplinary procedure will be removed, however Tribunals will in future be able to award a percentage increase of up to 25% (currently 50%) where the Organisation has unreasonably failed to follow the revised ACAS procedures.  The main recommended areas which are changing and should be considered are:

• Use of mediation both for grievance and in disciplinary matters, a mediation clause should be included should the Organisation wish to suggest the use of mediation, the clause should state what form the mediation will take, i.e. the appointment of an independent mediator, at what stage mediation will be used
• Brief notes should be kept of informal as well as formal discussions
• There should be a clear set of rules in place so employees are aware of what is expected of them, the disciplinary procedures should either contain these (at least what would constitute as Gross Misconduct) or make reference to where they can be found (i.e. Code of Conduct).
  
  The Organisation should make every effort to make sure that these rules are understood by all employees including young people or those where English is not the individual’s first language. An acceptance sheet may be a good idea.
• Procedures should:
  • not be discriminatory (the equal opportunities policy should state that Organisation procedures will be written in a non discriminatory way)
  • state that matters should be dealt with speedily
  • state that information will be kept confidential
  • contain information about which individuals will be carrying out which part of the procedure and who has the authority to give disciplinary action, does this differ for dismissals
  • state that employees must be given the supporting information prior to any hearing
  • state where the rules are different for different scenario’s i.e. what happens during an individual’s probationary period
  • state that managers will be trained on disciplinary and grievance matters
• Records kept of disciplinaries should contain the following:
  • details of the complaint made
  • details in relation to the employees defence
  • information regarding findings and actions
  • whether an appeal has been lodged
  • the outcome of the appeal
  • any grievances raised
  • whether there are any subsequent developments
  • notes of meetings
• Records kept of grievances should contain the following:
  • the nature of the grievance
  • what was decided and the actions taken
  • the reason for the actions
  • whether an appeal was lodged
  • the outcome of the appeal
  • any subsequent developments
    
    Copies of these records should be given to the employee.
• Where a grievance is raised during the disciplinary then the disciplinary process may be temporarily suspended in order to deal with the grievance, however where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently
• The right to use the modified procedure for dealing with grievances once an individual has left the Organisation will no longer apply.

Policies impacted:

• Disciplinary
• Grievance
• Harassment
• Capability
• Managing
• Attendance