In part 1 of this article we look at the ACAS Code of Practice, what it means and why it’s important.
Ordinarily, you may never come across this particular Code of Practice, because it specifically relates to Disciplinary and Grievance procedures. But, if you find yourself in a grievance or disciplinary situation at work, it is good to be aware of your rights, because this code of practice is there to protect You.
The first thing to be aware of, is that all employers, when dealing with a discipline or grievance issue, are required to follow a “full and fair” procedure in line with the ACAS Code of Practice. It places a minimum standard that employers are expected to meet when handling grievance or disciplinary issues.
If an employee goes on, at a later stage, to raise a tribunal case, the tribunal will look at the procedure (or lack of procedure!) that has been followed by the employer. Tribunals can then look to increase any pay-out by up to 25%, if they find an employer has failed to comply with the principles of the Code.
Also, it’s not just the employer that can be penalised, as a tribunal will also look to reduce any pay-out by up to 25% if they find that an employee has acted unreasonably and also failed to follow the guidance as per the Code.
It’s helpful to remember that it is always good to behave reasonably.
What is Disciplinary and Grievance?
Disciplinary looks at how issues with employees’ conduct or performance, that fall short of the standards required, are dealt with by an employer.
Grievance is about problems or complaints individuals may have with their employers.
Put simply, a disciplinary is raised by an employer for an employee to respond to, and a grievance is raised by an employee for the employer to respond to.
Key Principles of the Code of Practice
Here we look at those minimum standards that employers (and you) are supposed to meet. If you’re aware of these, it will help you to understand what is expected of you and also help you to recognise if you’re not being treated fairly at work.
It is our aim here to ensure you understand why some things happen as they do, and what to be aware of.
Before we get in to the nitty gritty of the Code there are some basic principles that it’s helpful to understand first:
ACAS looks for employers and employees to try to resolve any matters of grievance or disciplinary in the workplace, in the first instance.
Communication: Sometimes just engaging in good, honest and open conversation where both parties listen, can help sort out issues. It is surprising just how simple it can be to clear up an issue or misunderstanding by talking calmly and reasonably, before things spiral out of control and grow arms and legs!
Mediation: Sometimes however, things do go beyond that point, so that’s where introducing a third neutral party might help. By this we mean mediation. Mediation is the process where a third party engages with two separate people or groups (e.g. employer and employee) who are in disagreement, and seeks to help them agree or find a solution to their problems. A mediator might be someone internal and independent at your workplace or sometimes external mediators can also be used.
ACAS expects employers and employees to deal with issues promptly, without unreasonable delay. This includes delay of meetings; decision making and confirmation of decisions (e.g. outcomes), and remember that applies to employees as well as employers.
Before moving on, I want to draw your attention to the word “unreasonable” and how this is defined, because what is reasonable to one individual, organisation or situation, might not be reasonable to another. I think most people, if challenged, would instinctively know what reasonableness is, but a good test is to ask yourself, “If I lined up ten random people off the street, and asked them, what would they say?” This can help provide a realistic sense check, and can be used in many scenarios not just timescales.
ACAS expects employers and employees to act consistently. By this it means that behaviours; standards; rules; expectations etc are applied in a way that does not change. A good way to easily understand this is thinking about a scenario where an employer disciplines employee (a) for something, but not employee (b) for the exact same thing.
Consistency is easier to adopt where what is expected of employees is clearly set out for all to understand, perhaps in a Handbook. An employer should clearly communicate, in their handbook (or policy), that they will not tolerate certain things e.g. lateness or perhaps misuse of company computer equipment, and that the consequence of such behaviour, is disciplinary action. In doing this they have sent a clear unambiguous message to employees and should then act consistently each time someone breaches this expected standard. We talked about acting fairly earlier in this article, treating employee (a) one way and then employee (b) another in the same situation, this is an illustration of not, typically, acting fairly.
Employers are expected to establish the facts of the situation. An element of investigation is required to do this.
What is actually meant by investigation? Again, reasonableness comes in here, as employers are not held to the same investigation standards as the police for example. But it is reasonable for an employer to consider appropriate evidence. This evidence might be in the form of records; CCTV footage; or perhaps establishing facts by speaking to witnesses. Remember too, that the purpose in the investigation is to establish the facts, not seek to validate or prove something.
Employers should always allow employees the opportunity to respond to or put forward their case, before any decision is made. It is only possible to do this when employees have been informed of the problem or issue in question.
Employers should allow employees to be accompanied at any formal grievance or disciplinary meetings (we will look at this in more depth later)
ACAS expects employers to allow employees the opportunity to appeal against any formal decisions made.
Even though each of these key principles are relatively simple, it is amazing how many employers get it wrong, and how many enquiries we get, and can quickly recognise that things haven’t been handled well.
If any of what we’ve said above resonates with you, please don’t hesitate to get in touch with our HR and Employment Law Experts for advice.