By Ian Manborde, Thompsons Tutor in Trade Union Studies, Northern College

In this second of my monthly columns in Thompsons Weekly LELR I would like to focus on whether or not the revised ACAS Code of Practice on Disciplinary and Grievance Procedures (effective from 6 April) is more helpful to trade union representatives in defending their members from claims of incapability than the previous version.

One particular reason for the focus on capability is my own awareness of an increasing number of reps reporting that employers are relying on incapability as a route to dismissal. In addition the Employment Tribunal Service (ETS) has identified a 25 per cent increase in these claims in the nine months to March 2009.

It seems, therefore, that the economic downturn is having an impact on some employers’ decisions to avoid redundancy costs by examining other routes to dismissal.

The revised code helpfully still emphasises the need for “fairness and transparency” in instances of misconduct / poor performance.

In addition, and with an eye to the common mistakes that employers make in capability cases, reps should bear in mind the Code’s emphasis on the need for consistency in the employer’s approach. Similarly, the Code recommends that employers conduct an investigation and that this is done “without unreasonable delay”. Any period of suspension “should be as brief as possible”.

A key aspect of the Code in relation to allegations of incapability is the clear focus on the need for employers to give employees sufficient notice and evidence of the alleged poor performance.

The revised Code still retains the philosophy which provides for a staged approach to improvement, allowing time for performance to improve where it may have got worse.

As ever, all trade union representative who handle disciplinary and grievance cases should make themselves familiar with the Code and try to encourage HR / managers to become familiar with it as well.

You can download the new code by going to: