This page contains information that has appeared on Sandy Adirondack's legal update website for voluntary organisations at www.sandy-a.co.uk/legal.htm. For current updates, including potential changes that are in the pipeline, see the legal update website.

These websites for each chapter update the 3rd edition of The Russell-Cooke Voluntary Sector Legal Handbook by James Sinclair Taylor and the Charity Team at Russell-Cooke Solicitors, edited by Sandy Adirondack (Directory of Social Change, 2009). The websites are not intended as a comprehensive update and should not be treated as such.

To order a copy of The Russell-Cooke Voluntary Sector Legal Handbook, print out the order form at www.sandy-a.co.uk/bookserv.htm or send an email order by clicking . It costs £60 for voluntary organisations or £90 for others, plus 10% p&p.

Chapter 33
DISCIPLINARY MATTERS, GRIEVANCES AND WHISTLEBLOWING

POSSIBLE REVIEW OF ACAS DISCIPLINARY AND GRIEVANCE CODE

Updated 7/7/12; link updated 30/3/13. This information is included in s.33.2.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Following the government's "red tape challenge" on employment-related regulations in October 2011, the Department for Business, Innovation and Skills held a call for evidence from 15 March to 8 June 2012 on whether the current Acas code of practice on discipline and grievance, which came into effect after statutory disciplinary and grievance procedures were abolished in April 2009, could be adapted to make it easier to use and more accessible to small businesses.

The 2009 Acas code, and more detailed guidance updated in April 2011, can both be downloaded via tinyurl.com/dgfdsy.

CODE OF PRACTICE ON DISCIPLINARY AND GRIEVANCE PROCEDURES

Updated 15/6/09. This information is included in s.33.2.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
For disciplinary and grievance procedures triggered on or after 6 April 2009, the previous statutory procedures are replaced by an ACAS code of practice on discipline and grievance, setting out the basic principles of good practice. It does not have force of law and failure to comply with it is not in itself unlawful. However an employer's unreasonable failure to comply with the code can be taken into account by the employment tribunal and can lead to an increase of up to 25% in any award made by the tribunal, and an employee’s failure to comply can lead to a reduction of up to 25% in any award.

In practice the three stages of the statutory disciplinary and grievance procedures still remain under the new code (written notice, meeting, right of appeal) but without the detailed rigid requirements that could lead to an employer or employee being penalised for a technical breach of the procedures.

The intention of the new procedures is that disciplinary and grievance issues should, if possible, be dealt with through informal discussion. If this is unsuccessful, the key elements in a fair and transparent procedure are defined as dealing with issues promptly, acting consistently, carrying out an investigation to establish the facts, informing the employee of the issue, ensuring the employee can put their case at a disciplinary or grievance meeting before any decisions are made, ensuring the employee has the right to be accompanied, and ensuring the employee’s right to appeal against any formal decision.

Dismissals for a disciplinary reasons should follow the code, but failure to follow it does not make the dismissal automatically unfair as it was under the statutory procedures. The code does not apply to redundancy dismissals, termination of fixed-term contracts, or retirement dismissals.

The code's section on keys to handling disciplinary issues provides guidance on investigations and who should conduct them, the sort of information employees should be provided with before any disciplinary meetings, the role of a companion, gross misconduct, dismissals, and appeals. All parties have an obligation to make every effort to attend disciplinary meetings. In some situations expired disciplinary warnings can be taken into effect (see expired warnings). One change from the statutory procedures is that the employer must inform employees of their right to be accompanied by a companion.

Another significant change from the statutory procedures is that disciplinary warnings have to be dealt with procedurally in the same way as dismissals, which means there must be provision for appeal against a warning.

The keys to handling grievances state that employees should raise grievances formally in writing, without undue delay, with their line manager if they have a concern that cannot be resolved informally. It is made clear that a grievance meeting can be adjourned if an investigation is necessary. The employer's decision has to be in writing, and employees have to appeal if they are not satisfied with the decision, rather than going direct to the tribunal.

Unlike under the statutory procedures it is no longer necessary for an employee to go through a grievance procedure before bringing a claim in the employment tribunal, but failure to do so could be held to be unreasonable and could lead to a decrease of up to 25% in any award to the employee.

The code includes sections on overlapping grievance and disciplinary cases and on collective grievances.

The final version of the code was approved by Parliament on 12 March 2009 and is at www.acas.org.uk/dgcode2009.
The final version of ACAS's guidance, which is more detailed than the code, is at www.acas.org.uk/index.aspx?articleid=2179.
Further information, including details of extended opening hours from April for the ACAS helpline and the increased emphasis on mediation as a way to solve workplace disputes, is at www.acas.org.uk/index.aspx?articleid=2126.

The Employment Act 2008, which brings in the new provisions, is at www.opsi.gov.uk/acts/acts2008/ukpga_20080024_en_1.

Go to archived items about termination of employment (VSLH3 chapter 34)

SANDY ADIRONDACK
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for the voluntary sector
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