In the Spotlight - the ACAS Code of Practice in action!

Published: 19th June 2009

It is now over two months since the ACAS Code of Practice on disciplinary and grievance procedures came into effect. We thought it would be helpful to share some of the common questions we are being asked about implementing the Code and the tricky issues that are emerging in practice. Although we may be glad to see the back of the statutory procedures, the Code is not without its problems.

Are we required to give an employee the right of appeal when dismissed for redundancy?

The Code specifically states that it does not apply to redundancy dismissals. Because of this some employers have queried whether it is now necessary to provide a right of appeal where the redundancy process leading to dismissal starts on or after 6 April 2009.

Although the Code does not apply, such dismissals are still covered by statutory unfair dismissal rights. This means that employers must still satisfy the reasonableness test if they are to show that such a dismissal is fair. The leading case states clearly that procedural fairness is an integral part of the reasonableness test in redundancy dismissals. Does procedural fairness include giving the employee the right to appeal their redundancy? There is no case law which states categorically that it does but we can see how it could be argued that a fair procedure by its very nature should include the employee's right to challenge the employer's decision.

This view is strengthened when the ACAS advisory booklet on "Redundancy Handling" is considered. This advises employers to consider establishing a redundancy appeals procedure, involving a more senior member of management, to deal with complaints from employees who feel they have been unfairly selected for redundancy. There is no indication as to when any appeals procedure would apply (is this before the decision to dismiss is taken or following it?) but the advice is clearly that an appeal should be provided.

If you wish to avoid being challenged on this point, our advice is to provide the employee with a right of appeal at some point in the redundancy process. This is often done once the decision to dismiss has been taken and the opportunity to appeal is confirmed in the letter of dismissal. If you have your own redundancy procedure and this contains the right of appeal then this should continue to be applied.

We often find that employers use the appeal as a guard against poorly thought out redundancy decisions and it does give you the opportunity to remedy defects should these exist before the employee reaches for the Employment Tribunal claim form.

Are we required to hold a meeting to consider the grievance of an employee who has now left?

The Code states that an employee should set out their grievance in writing, following which their employer should hold a meeting at which the employee should be allowed to explain their grievance. The Code refers to an "employee" raising a grievance with the "employer" but says nothing at all about what should happen in respect of post employment grievances.

A view could be taken that if the Code was meant to apply to post employment grievances then it would specifically say so. An alternative view is that it goes against the spirit of the Code if it were not meant to apply. Both may be valid. We will have to await a decision in an appealed case to know the answer.

Until we have such case law we advise taking a cautious approach and endeavouring to follow the grievance process as outlined in the Code if there is any risk that the ex-employee may bring a claim. If the Code does apply to post employment grievances and you have not complied with it then you do leave yourselves exposed to the uplift (up to 25%) which Employment Tribunals are able to apply to awards not just for successful unfair (constructive) dismissal claims but also those for discrimination, equal pay and breach of contract.

The Code contains no modified grievance process as was the case under the statutory grievance procedure and we do appreciate that this may cause some practical difficulties for employers, particularly when you consider that the Code allows for the right of appeal. However, many employers do find benefits to holding a grievance hearing for an ex-employee. It does give an opportunity for you to address any issues and assess the strength of any claim. Even if a claim results, the Employment Tribunal is likely to look on your attempts to resolve the dispute favourably and can provide us with a strong senior witness who heard the appeal (who will often provide good/persuasive evidence to the Tribunal).

Are we required to apply the Code when dealing with sickness absence?

The Code must be applied in disciplinary situations which are described as "misconduct and/or poor performance." Therefore whether the Code is required to be applied will depend upon the precise nature of the sickness absence issue.

If the issue is being treated as one of misconduct, then your usual disciplinary procedure should be used and the provisions in the Code must be complied with. An example would be where you genuinely believe that the employee is not ill and is basically malingering. These tend to be the more unusual cases.

More commonly, sickness absence dismissals will be because the employee is no longer capable of doing their job. This would apply where the employee has a long term illness with no prospect of a return to work in the near future, or the employee has short term persistent absences which when taken together create an unacceptable attendance record. In the case of short term persistent absences employers often have sickness management procedures which involve a succession of meetings with the employee to put them on notice that their attendance record is falling below the standard required and if the absence persists then dismissal is likely to be considered. In these scenarios it appears that the Code does not strictly apply. However, where dismissal occurs these are still covered by the statutory unfair dismissal rights and employers must still satisfy the reasonableness test if they are to show that such a dismissal is fair. This will require you to show, amongst other things, that you have met with the employee to discuss the matter before arriving at a decision and have provided the employee with the opportunity to appeal any decision to dismiss.

The gaps in the ACAS Code are clearly unsatisfactory and need to be resolved quickly in the interests of certainty for employers and employees alike. If the problems we have identified raise any questions for your organisation or if you have any concerns about how your existing procedures sit in relation to the new Code, then please speak to your usual contact in the Mace & Jones employment and HR team in Liverpool: 0151 236 8989 or Manchester: 0161 214 0500.