The ACAS Code and Guidance – important things to know

What are the differences between the ACAS Code of Practice and ACAS guidance on disciplinary and grievance procedures?

It is fairly likely that all employers will come to hear of ‘the Advisory, Conciliation and Arbitration Service (ACAS) Code of Practice’ and ‘ACAS Guidance’ on disciplinary and grievance procedures. These could be mistaken for being references to the same thing, particularly as they largely deal with the same issues, but they are in fact distinct and different things. 

Because the Code and Guidance on disciplinary and grievance procedures overlap it can be difficult to understand the potential implications of following or not following them.

The statutory code

There are five statutory Codes of Practice published by ACAS. This article focuses on the ACAS Code of Practice on disciplinary and grievance procedures (the Code). The Code was issued under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), and last updated in 2015. It is 47 paragraphs long and can be found here, along with the other ACAS statutory Codes of Practice.

The Code provides fundamental principles for employers and employees to abide by to help ensure fair and reasonable processes take place which are intended, in turn, to help reach fair and reasonable outcomes. The sections of the Code assert the importance of fairness and consistency and sets out the rights of employees during these processes.

Non-statutory guidance

ACAS provides guidance, by way of step-by-step guides to disciplinary and grievances processes, specific guidance on how to conduct an investigation or an appeal and guidance on the basics of a fair dismissal (the Guidance).

The ACAS Guidance was not created under a statutory provision or agreed by Parliament and should be seen as a ‘best practice’ manual.

What are the differences?

The Code clearly establishes the core principles of a disciplinary and grievance process. For example, the sections of the Code (at the time of writing) are as follows:

For disciplinary processes:

• Establish the facts of each case
• Inform the employee of the problem
• Allow the employee to be accompanied at the meeting
• Decide on appropriate action
• Provide employees with an opportunity to appeal
• Special cases, including cases which involve criminal charges or convictions

For grievance processes:

• Let the employer know the nature of the grievance
• Hold a meeting with the employee to discuss the grievance
• Allow the employee to be accompanied at the meeting
• Decide an appropriate action
• Allow the employee to take the grievance further if not resolved
• Overlapping grievance and disciplinary cases
• Collective grievances (making clear that the Code does not apply to collective grievances)

Where the Code establishes a framework of fundamental principles, the Guidance adds more detail about, for example, how to fairly undertake and use investigations as part of the process.

In an ideal world an employer would ensure they followed the Code and the Guidance and doing so will reduce the likelihood that they will be found to have acted unfairly. Crucially, because the Code has a statutory footing it requires any tribunal deciding on the fairness of a disciplinary or grievance process to take the Code into account. A tribunal judge is not bound to have regard to the Guidance.

In addition, if an employer is found to have not followed or to otherwise have breached the Code then a tribunal can increase any monetary award to an employee by up to 25 percent. Conversely, if an employee is shown to have failed to follow the Code, (for example, by refusing to attend a disciplinary meeting or to appeal against dismissal) even if they are found to have been unfairly dismissed, their total monetary award can be reduced by up to 25 percent.

What does this mean for employers in practice?

Employers must keep the fundamentals of the Code in mind and strive to meet them whenever a grievance or disciplinary process is undertaken. A disciplinary or grievance procedure policy that was drafted with the Code as the starting point will usually put an employer in a good position to deal with such matters as they arise.

Whilst following the Guidance is preferable, it is unrealistic to expect all employers to be able to comply with the level of detail set out within it. This may be because of the limitations of resources or because the particular circumstances of a matter does not easily fit with the approach taken in the Guidance.

The Guidance can also be confusing. For example, the step by step guides both state (at Step 4) that copies of all written evidence should be shared with the employee. In reality employers may not want to disclose all of the evidence gathered as part of a grievance because that information is sensitive or confidential. It should also be remembered that if grievance outcomes require action, it is for the employer to take appropriate action based on the evidence found in the grievance and the original complainant will not be told of the specific action where this involves action against a colleague.

In contrast, because disciplinary action may lead to sanctions including dismissal, an employer is under a higher duty to disclose all of the evidence that goes into making that decision to the employee, save for special circumstances.

It also means that if an employer is accused of not following the ‘ACAS guidelines’ it pays to ask the accuser to be specific. If the complaint relates to failing to follow the Guidance this is less concerning than an accusation of not following the Code.

It is also worth underlining the point that employees are also bound to follow the Code which can be useful, for example, in reminding employees that under the Code they should make every effort to attend the disciplinary meeting and provide the name of their companion in advance.

How Wrigleys can help At Wrigleys we work closely with our clients to help us understand their values and ways of working. That helps us to guide them through disciplinary and grievance processes in ways that not only help clients to reach fair and reasonable outcomes, but outcomes that fit within their ethos. If you need advice on disciplinary or grievance process, or you would like to speak to us about putting in place a policy or process that better aligns to the way you operate, do get in touch.

 

If you would like to discuss any aspect of this article further, please contact Michael Crowther or any of the employment team on 0113 244 6100. You can also keep up to date by following Wrigleys employment team on Twitter. The information in this article is necessarily of a general nature.  The law stated is correct at the date (stated above) this article was first posted to our website. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.