In May we reported that the Advisory, Conciliation and Arbitration Service had issued for consultation a new Code of Practice on Discipline and Grievance. Acas has now issued what it hopes will be the final version of this code of practice. It has been approved by the Secretary of State for Business, Enterprise and Regulatory Reform and will be put before Parliament for its approval.
The Employment Bill recently received Royal Assent and became the Employment Act 2008. The Act repeals the statutory dispute resolution procedures and related provisions. It is intended that the code of practice will come into effect in April 2009 on the same date as the repeal of the statutory procedures takes effect.
This article sets out the key provisions of the new code that are of importance to education institutions.
Key features of the new code
First, the code will not apply to redundancies or the termination of fixed-term contracts. This immediately “cures” one of the noted problems of the existing statutory dismissal procedures.
Secondly, employers and employees must “seek” to resolve issues in the workplace. This wording has changed from an earlier draft that stated that they should “do all that they can” to resolve issues.
Thirdly, employers and employees may be penalised by an adjustment of up to 25 per cent on any award of compensation for an unreasonable failure to comply with a provision of the code.
The code itself consists of the following main sections:
General principles
The introduction to the code sets out some guidelines for employers dealing with discipline and grievance such as the need to deal with issues promptly and consistently. It gives definitions of disciplinary situations (which include misconduct and/or poor performance) and grievances (“concerns, problems or complaints that employees raise with their employers”). It also states that more comprehensive advice and guidance on dealing with disciplinary and grievance situations will be contained in the Acas guidance booklet, which will contain sample disciplinary and grievance procedures.
Discipline
The section on discipline sets out the key stages for handling disciplinary problems in the workplace under the following headings:
• establish the facts
• inform the employee of the problem
• hold a meeting
• allow the employee to be accompanied
• decide on appropriate action
• right of appeal.
The recommended disciplinary process in the code is now: written warning, final written warning and dismissal, a much simplified process for employers to follow. Note that an oral warning has been omitted.
Furthermore, a new paragraph has been added to cover those situations where an employee refuses to attend a disciplinary interview. It states: “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 definition of “persistently” is likely to be fertile ground for debate and appeal.
Grievances
The section on grievances sets out the key stages of handling grievances in the workplace under the following headings:
• let the employer know the nature of the grievance
• hold a meeting
• allow the employee to be accompanied
• decide on appropriate action
• allow the employee to take the grievance further if not resolved.
The code makes it clear that a grievance should be raised in writing. It also states that it is for the employee to raise an appeal if he is not content with any decision made.
Overlapping grievance and discipline
A new section has been inserted into the final version of the code that states that a disciplinary process may be temporarily suspended to allow a grievance to be heard or, if the grievance and discipline are related, the issues may be dealt with concurrently. Overlapping grievance and disciplinary issues have been particularly difficult to deal with under the statutory procedures, but many of these difficulties should be addressed under the new regime.
Collective grievances
The code does not apply to grievances raised on behalf of two or more employees by a trade union or other appropriate workplace representative. This prevents the risk of a 25 per cent adjustment where such grievances are not handled individually.
Comment
How tribunals approach the code, their ability to adjust awards and the significance of the forthcoming guidance remain to be seen. Nonetheless, the code does now provide a little more certainty over what will be expected and the welcome repeal of the statutory dispute resolution procedures.
Diane Gilhooley is HR expert in the education team at Eversheds.