Discipline and grievances at work: draft ACAS guide consultation
Response by Thompsons Solicitors - July 2008
Thompsons is the UK’s most experienced firm of trade union, employment rights and personal injury lawyers. The firm has offices operating in England, Northern Ireland, Wales and Scotland. On employment and industrial relations issues it acts only for trade unions and their members. Thompsons represents the majority of UK trade unions and advises on the full range of employment rights issues through its specialist Employment Rights Unit.
Thompsons welcomes the publication of the draft ACAS code of practice on discipline and grievance.
Thompsons welcomes the repeal of the Dispute Resolution law and further welcomes the decision to issue a new Code of Practice to take account of that repeal. However, we are concerned that the draft Code suffers from a number of major defects. In summary these are:
- The Employment Bill currently before Parliament proposes to insert a new section 207A into TULRCA, to allow Employment Tribunals to adjust awards if either party has failed to comply with the new Code. However, the response of ACAS is to dilute the provisions of the pre-Dispute Resolution Code so as to weaken the impact of the proposed new section.
- The result is a draft Code that is more procedure than guidance. All previous Codes have advised employers on how to conduct their procedures. This draft concentrates on what the lowest level of procedures should be.
- This is especially true when considering how the Code might set fair standards for cases of alleged misconduct and poor performance. It is disappointing to note the almost complete absence of the heart in the current Code.
- Whereas previous Codes have provided vital instruction for all concerned and have helped Employment Tribunals and the Employment Appeal Tribunal by setting standards of fairness, the draft Code fails to do so.
- We appreciate that time and case law have moved on since the enactment of the Dispute Resolution procedures, but we are firmly of the view that the 2000 Code should have been the starting point for the draft.
- The decision to produce an abridged Code has produced a draft that comes close to replicating the low standards set by the Dispute Resolution procedures and abandons any attempt to influence workplace behaviour for the better.
- on occasions the draft Code positively advocates disciplinary action
Against that background, we now comment on the wording of the draft Code.
The code of practice
We are concerned at the recommendation for use of a third party to resolve problems, without any mention of safeguards for employees’ interests. Furthermore, the draft Code goes too far in asserting that recourse to an Employment Tribunal “should only be a last resort”. There are many cases where that is the employee’s only realistic option of obtaining redress, especially since it is the employer that monopolises the decision-making process.
We are surprised that this draft Code should shed so much of the valuable guidance contained in previous Codes. The deletion of long-standing guidance such as the rationale behind disciplinary rules and procedures and the need to observe the rules of natural justice marks a radical retreat from the objectives of previous Codes. It is noteworthy that the Introduction no longer asserts that the Code provides practical guidance on “what constitutes reasonable behaviour when dealing with disciplinary and grievance issues”. It is disappointing that Employment Tribunals are to be deprived of the Guidance on which they have drawn for so long.
We suggest replacing the phrase “does not work” with “fails to do so” – a reference back to “resolve the problem”.
This paragraph should mention the importance of ensuring that employees know what the rules and procedures provide and how to obtain a copy.
We do not agree that the “size and resources of the employer should always be taken into account”. As a matter of law, that is certainly not the case in discrimination and victimisation cases.
We repeat our concern about the assertion of going to tribunal only “as a last resort”. First, there are cases where that is not justifiable e.g. harassment cases in a small enterprise. Secondly, there is no parity – nowhere does the draft Code suggest that disciplinary action should be a measure of last resort. Indeed, by contrast, paragraph 20 positively advocates issuing a disciplinary written warning, surely a first for any ACAS guidance. Thirdly, there will often be time limit problems that require a protective, holding complaint to an Employment Tribunal if the worker is not to lose his/her rights.
It is surely important to deal with issues fairly whether they are being handled formally or informally. The bullet points that follow risk causing confusion by covering both discipline and grievances. The fifth bullet point should advise that an employee be informed in writing of the problem; and it should advise that the employee is given an opportunity to prepare and put their case.
Here and/or in paragraph 21, the Code should suggest a limit for the life of a warning. Paragraph 22 of the current Code suggests a maximum of six months.
Paragraph 8 : Investigation
It has been established law for several years that a fair investigation requires two broad elements to be present:
- it needs to balanced, looking as much for exculpatory material as it does for incriminatory material
- where there are very serious charges against the employee the thoroughness of the investigation needs to be much greater
Thompsons sees the absence of these factors in the majority of investigations and believes that mention should be made within the Code of these fundamental elements.
Paragraph 10 : Suspension
Thompsons welcomes the omission of any reference to suspension being a neutral act but is concerned that there is no reflection in the Code of the fact that suspension is now considered a detriment by the Court of Appeal.
Since our experience is that most suspensions are knee-jerk reactions by managers applying procedures uncritically, employees are routinely subjected to detriment without proper consideration or justification. Thompsons would welcome a reference in the Code such as was in paragraph 13 of the September 2000 version and paragraph 9 of the current (2004) Code:
” In certain circumstances, for example in cases involving gross misconduct, where relationships have broken down or where it is considered there are risks to an employer’s property or responsibilities to other parties, consideration should be given to a brief period of suspension with pay whilst an unhindered investigation is conducted. Such a suspension should only be imposed after careful consideration and should be reviewed to ensure it is not unnecessarily protracted. It should be made clear that the suspension is not considered as disciplinary action.”
Similarly, we consider that it is vital that reference is made within the Code to keeping any period of suspension under weekly review with the employee being notified in writing of the reasons for any extension or continuation.
Furthermore, the Code should make clear that suspension is from work. The growing practice of attaching to a suspension the condition that the employee stay off-site and not contact colleagues is a gratuitous breach of civil liberties, since such a condition exposes an employee to a charge of misconduct if they contact fellow workers who are also their friends. This kind of draconian suspension makes it much more difficult for the employee to gather evidence while memories are still fresh and then to defend themselves against charges.
Paragraph 12 : Sufficient Information
A key failing of the statutory disciplinary and dismissal procedure was that it allowed employers to keep producing evidence as late as the disciplinary hearing itself, thereby ambushing the employee with new information and material.
Thompsons would prefer the Code to warn against this widespread practice, by having the notification requirements of this paragraph 12 include a copy of all the evidence that the employer is to produce against the employee. Although paragraph 13 implies this with the phrase ‘…and the basis of the allegations against them,’ we do not consider it to be clear enough. If the employer is content that it has conducted its investigation properly, and that it has sufficient cause for concern to proceed to a disciplinary hearing, then there is no good argument against a full and early disclosure of all of that material.
Paragraph 14: Putting the employee’s case
In similar vein, it is not enough to allow the employee to set out their case and answer allegations, if they are denied an opportunity to hear/see and contest the evidence against them. Paragraph 14 should require an employer to provide evidence to the employee and allow the employee to contest that evidence, if needs be by cross-examination – see paragraph 15 of the current Code.
Paragraph 17: The Right to be Accompanied
We do not understand why the draft Code singles out and emphases (here and at paragraph 37) the need for the employee to make a reasonable request.
Paragraph 18: Right of Appeal
Paragraph 18 and the following paragraphs do not mention either a right of appeal or a duty on the employer to inform the employee of such a right. This omission reduces the guidance below the standard set by the minimal statutory DDP. Paragraph 39 however does state this right and consistency points to its inclusion in paragraph 18
Paragraph 19 : Warnings
Thompsons is concerned that this paragraph appears to seek to shrink the band of reasonable responses available to an employer. By advocating that a written warning should be given, it ignores less severe responses such as a verbal warning, training, further supervision or, if the contract permits it, disciplinary suspension, loss of seniority etc. The current wording – “the usual first step would be…” – stops short of such advocacy and should be restored.
Paragraph 21 : Duration of warnings
It is disappointing that the Code has not tackled head on the problems that have arisen as the result of recent case law about expired warnings . We believe that the statement, ‘The employee should be told of a specified period after which the warning will be disregarded’ is too vague as it does not address the purposes for which it will be disregarded. As a document defining good practice the Code is not restricted to adopting practices simply because they are merely lawful and Thompsons consider that warnings should be disregarded for all purposes after they have expired.
Paragraph 22: Information accompanying warnings
If the warning is in writing, so should be the information mentioned in this paragraph.
Paragraph 24: Disciplinary rules
We suggest that this paragraph is moved to earlier in the Code, preferably with fuller guidance on disciplinary rules.
Nowhere in the section “Decide on appropriate action” is the employer advised to inform the worker of their right of appeal. This omission should be remedied.
Paragraph 25: Appeal Date
We do not follow why it is only an “ideal” for the disciplinary appeal hearing date to be set by agreement – compare paragraph 40 on grievance appeals.
Paragraph 29: Trade union lay officials
The wording “necessary to discipline a trade union lay official” prejudges the issue. The current paragraph 42 says “if disciplinary action is considered” and that wording should be restored.
There is no reference to trying to resolve problems informally and we suggest that appropriate wording be added.
This puts the burden on the employee complaining against their line manager to approach another manager if possible. The Code does not require an employer to advise employees of how they might do so.
The Code should encourage good practice of always allowing workers to be accompanied in any grievance hearing.
We repeat our earlier observation about singling out the “reasonable request” while ignoring other elements of the Right to be Accompanied that appear in the current Code.
Paragraph 39: Appeals
This paragraph should require an employer to notify the employee of the right of appeal.
Paragraph 43: Special cases
The Code should make clear that bullying and harassment cases should be dealt with under separate procedures.