Gardner Leader

Under the Employment Act 2008, the Statutory Discipline and Dismissal Procedures have been repealed with effect from 6 April 2009. Gardner Leader Employment Lawyer Julie Taylor highlights some of the key changes that employers should look out for when taking disciplinary action or considering dismissing an employee.

What have the statutory procedures been replaced with?

When taking disciplinary action or contemplating dismissal, employers must follow the procedures set out in the new ACAS code of practice. On a practical level, the stages that an employer is required to follow are not dramatically different from the steps required under the old regime, although the consequences of non-compliance have changed.

What is required to comply with the Code?

When dealing with a disciplinary issue that relates to the employee’s conduct or capability, the employer is obliged to investigate the situation and initially seek to resolve the issues informally. If an informal solution cannot be found, then the employer can take formal disciplinary action based on the following steps:

1.       Investigate: the reason for the problem should be thoroughly investigated to establish the facts.

2.       Inform the employee of the problem: this should be done in writing and the employee should be invited to a meeting to discuss the situation.

3.       Hold a meeting: the meeting should be a full discussion of the problem. The meeting should be held without unreasonable delay and the employee has a right to be accompanied by either a trade union representative or a colleague.

4.       Decide on appropriate action: Following the meeting, the employer must decide on the appropriate action and notify the employee in writing.  Depending on the severity of the conduct or capability issue, and whether it is a first issue, will determine what action is appropriate, i.e. a written warning, dismissal, etc.

5.       Allow Employee right of appeal: the employee has a right to appeal against the disciplinary sanction imposed. They must set out their grounds of appeal in writing and the appeal process should broadly repeat the stages outlined above and where possible be dealt with by a manager not previously involved in the case.

What are the consequences of failing to follow the ACAS code?

Failing to follow the best practice guidelines set out in the code could potentially lead to an unfair dismissal claim. However, it will no longer automatically be an unfair dismissal if one of the procedural steps is not followed, as it was under the old regime.

Previously the employment tribunal could award an uplift of between 10-50% for failure to comply with the procedures. Now the tribunal can award an adjustment of between 0-25% where the failure to comply with the code was unreasonable.

If you have any concerns regarding the issues outlined in this article and the compliance of your company with the new procedures I would recommend that you take legal advice.