The New ACAS Code – How It Affects You
The Employment Act 2008 (EA 2008) introduces a process for dealing dismissals on the 6th April 2009. It repeals the statutory “three step” dispute resolution procedures (the DDP’s) under previous legislation which are widely viewed as unworkable. The EA 2008 replaces these procedures with the new ACAS Code of Practice on Disciplinary and Grievance Procedures.
When does the new code apply?
In general, any grievance concerning facts which occurred wholly before 6 April 2009 will fall under the old (i.e. current) regime and any grievance which concerns facts occurring wholly on or after that date fall under the new regime. For most grievances spanning that date, the old regime will continue to apply if the grievance or claim is submitted to an employment tribunal on or before 4 July 2009, although in some cases involving equal pay, redundancy or industrial action the date is 4 October 2009.
Similarly in terms of disciplinary matters the old regime will continue to apply where the employer has dismissed an employee or taken relevant disciplinary action before 6 April 2009. It will also apply where the employer has sent the employee a "step 1" letter or held a "step 2" meeting before that date. In any other case the new regime will apply from 6 April 2009.
What are the changes?
Best practice advice in terms of handling grievances and disciplinary does not change significantly as a result of the new law and general principles such as dealing with grievance and disciplinary matters promptly and consistently remain. However there are some changes:
In terms of grievances there will no longer be an automatic three-month extension of time for bringing a claim once a grievance has been submitted. The employee will have three months only (as before) to raise proceedings from the date of dismissal or the event that has triggered the claim.
There are two new steps recommended in the Code in terms of evidence at disciplinary hearings:
1. Explain the complaint against the employee and go through the evidence that has been gathered. This stage may have been taken as read under the current scheme since the employee should already have been given the opportunity to digest this information.
2. Allowing the employee to call witnesses in addition to asking questions and presenting evidence. It is not clear from the code how this should operate – simply that witnesses may be “called”. This clearly goes further than the submission of witness statement which may be considered sufficient currently.
The law on unfair dismissal and compensation has changed. Currently (and until 6th April 2009) a dismissal without following the three step procedure is automatically unfair. Under the new regime, the question is whether the employer acted outside the band of reasonable responses in treating misconduct or poor performance as the reason for dismissal. The tribunal will take account of the new ACAS code in deciding that issue. Compensation under the current regime can be adjusted by 10%-50% for any failure to complete the statutory three step procedure, under the new scheme the adjustment is 0-25%, and will only apply where a failure to follow the new Code is "unreasonable".
The new code is not written in the precise language of a statute. Tribunals will have a wide discretion to decide what amounts to a failure to follow the code, whether that failure is "unreasonable" and to what extent an uplift or reduction in compensation is "just and equitable". Until a body of case law has been established this may make it difficult to advise on appropriate figures for settlement of claims or the prospects of a claim.
The other key difference is that tribunals will be looking for evidence that managers are appropriately trained to deal with disciplinaries and grievances. If your managers are unsure or haven't had training then it is not too late to start. HCS has been running a workshop especially tailored for managers, which meets the legislative requirements.
For further advice or to receive more details of our workshop programme please contact cate.ritchie@humancapitalservices.co.uk or call us today on 0141 776 6456.
05 June 2009, Administrator
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