Introduction to ACAS Procedures PDF

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ACAS procedures and rules needed to follow...

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Introduction to ACAS Procedures ACAS Code of Practice on Disciplinary & Grievance Procedures • Must be followed by both employers and employees • Code is a “minimum” the basic requirements – employer can have own policies • Consequences of failure to follow Code: – Not a standalone claim – Unfair dismissal? – employee having to pay quite a high compensation – Impact on compensation for other successful claim? Misconduct at Work “Disciplinary situations include misconduct and/or poor performance. If employers have a separate capability procedure they may prefer to address performance issues under this procedure. If so, however, the basic principles of fairness set out in this Code should still be followed, albeit that they may need to be adapted.” Examples of misconduct – - Arriving late - Revealing confidential info - Dressing inappropriately - Repeated absence - Can include poor quality of work in some situations Code of Conduct

Code of Conduct: Gross Misconduct Extremely serious and can lead to the employee’s dismissal Example of gross misconduct – - Stealing - Attacking work colleague -

Dealing with Misconduct: Procedure Some broad principles which need to be followed ACAS Code: • Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions. • Employers and employees should act consistently.

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Employers should carry out any necessary investigations, to establish the facts of the case Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made. Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting. Employers should allow an employee to appeal against any formal decision made.

Easiest breakdown checklist of procedure: 1. Informal Resolution 2. Investigation – Suspension? 3. Information to be given prior to hearing – Postponement? 4. Disciplinary hearing 5. Decision 6. Appeal Example situation – Employee at retail, has been rude to a customer 1. Informal resolution – could it be resolved by speaking to the member of staff informally and making sure they were clear it was unacceptable - sometimes informal resolution is possible, if not 2. Investigation – suspension? – to establish facts of what’s happened - sometimes might show a reasonable situation as to why issue arose e.g. customer was rude and aggressive first - employer has to appoint an investigating officer, ideally someone senior than employee and wasn’t involves in situation - might do meetings, look into CCTV - question of suspension also, but must be reasonable grounds – employer must also look at alternatives to suspension - suspension must be reasonable and under review, also mutual act not taken as an indication of guilt – or anything to do with the outcome - at the end of investigation, investigating officer will make a recommendation ie. No case to answer and proceedings should halt, or the opposite 3. Information to be given prior to hearing – Postponement? - requirement to let employee know, give reasonable notice for hearing - employee needs to be advised in writing of allegations, evidence and possible consequences, i.e., dismissal or just a warning - Also given info about logistics of the meeting including having a right to be accompanied to the meeting - quite limited, to either colleague from workplace or trade union - Employee might ask for postponement, if employee attends to fail first hearing, then employer needs to arrange - if continuous failure, employer does have the discretion to decide what to do i.e. Hold hearing even though employees saying cannot attend

4. Disciplinary hearing - Must be done by someone who is not the investigation officer/ involved - Also, must be someone present to take notes - First hearing introducing and explained to employee what will happen, allegations presented, evidence explained and gone through e.g. witnesses - Employee has right to question and challenge witnesses - Once employer presented their info, employee has opportunity to state their side - Once meeting underway, may adjourn for further notice 5. Decision -

Are they guilty or not Must be given without unreasonable delay Worth case scenario = dismissal, employer must show genuine belief based on reasonable grounds for this Could be demotion Could be a warning, depending on severity Could be moving to a different role

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Employee does have a right Must be dealt with impartially Someone more senior and different to the first one dealing with it

6. Appeal

Essentially there are three types of hearing: • informal interview -matters discussed • investigatory hearing -ascertain facts, collate evidence • disciplinary hearing-formal The key point here is to not mix together these type of hearings as they are performing different functions and have different requirements such as the right of the employee to be accompanied • •

A distinction must be drawn between the investigatory function and the disciplinary function If same person does both, usually no problem, but when they are separate and distinct, there is an obligation to give an employee a hearing at both stages

Budgen & Co v Thomas Facts – • Employee dismissed after she had signed a written confession that she stole a small sum of money • matter had been investigated by the security officer, and on the basis of his report, which was sent to the company’s head office, the decision to dismiss was taken • was held to be unfair was an 18-year-old girl, diabetic, and subsequently claimed that she was confused at the time she signed the confession and that it was not true

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It could not be said that in view of her personal circumstances the management would have dismissed her had she been given the opportunity to present her case; the person who took the decision to dismiss should at least have given her a hearing

Hearing In those cases where witnesses are not part of the employer’s organization, it is not necessary for the employer to carry out a quasi-judicial hearing, with a confrontation and cross-examination of those witnesses Ulsterbus Ltd v Henderson [1989] IRLR 251, NICA Sainsbury’s Supermarkets Ltd v Hit • COA confirmed that the band of reasonableness approach applies to the conduct of investigations as much as to other procedural and substantive decisions to dismiss a person from his employment for conduct • So, provided an employer carries out an appropriate investigation, gives the employee a fair opportunity to explain his conduct, etc, • would be wrong for an ET to suggest that further investigations should have been carried out for • by doing so, substituting own standards of what was an adequate investigation for the standard that could be objectively expected from a reasonable employer Disciplinary and grievance procedures should conform to the ACAS Code of Practice note the Code is limited to disciplinary situations relating to culpable conduct which may lead to correction or punishment  means that employers who dismiss employees for reasons which do not give rise to a disciplinary situation do not have to follow the ACAS Code of Practice on disciplinary procedures •

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failure to follow Code, won’t mean automatically any action taken will inevitably be unfair (Lewis Shops Group v Wiggins[1973] ICR 335, [1973] IRLR 205, NIRC) but both sides ignore it at their peril

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ET’s should always consider the Code of Practice as a guide when assessing the reasonableness of any action taken, and any relevant provisions should be taken into account when determining the issues before them (Lock v Cardiff Railway Co Ltd[1998]IRLR 358

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The Code is issued under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992 A failure to follow the Code does not, in itself, make a person or organisation liable to proceedings. However, employment tribunals will take the Code into account when considering relevant cases

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Tribunals will also be able to adjust any awards made in relevant cases by up to 25% for unreasonable failure to comply with any provision of the Code means if they feel an employer has unreasonably failed to follow the guidance set they can increase/decrease any award they have made by up to 25%

Fairness in procedure Application of an unfair procedure will render a dismissal unfair even though compliance with a fair procedure would have produced the same result of dismissal. p.158,Phillips and Scott. Capability and qualifications: • approach to capability and qualifications should vary depending on whether the incapability is due to incompetence or sickness • ACAS Code covers poor performance/incompetence Managing capability issues • employer should follow a procedure based on encouraging their employee to improve to give the employee the chance to get better and to stop any further problems arising • employer could provide their employee: support, for example making changes to their work or arranging counselling sessions ,training to help them do their job better. • might include a performance management procedure – check your workplace's policy Incompetence • employer should normally have met with the employee, warned the employee about his standard of work and given him the opportunity to improve. • adequate training should have been given and review periods set down

Sickness The Code does not explicitly cover dismissals by reason of ill-health, but the guidance includes a section dealing with ill –health absences: • employer may be fairly dismissed for long-term sickness. See Spencer v Paragon Wallpaper Ltd [1976]IRLR 373. • Ultimately, key issue is whether the employer can be reasonably be expected to wait ?Very fact specific, small firm different than a larger one. Consider the context. Lots of case law on this point COVID-19 ACAS • Disciplinary and grievance procedures during the coronavirus pandemic • Employment law and the Acas Code of Practice on disciplinary and grievance procedures still apply during the coronavirus (COVID-19) pandemic. This includes while social distancing and lockdown measures are in place Conduct • types of conduct that can engage disciplinary procedures are infinite • Whenever a disciplinary/grievance process followed it is important to deal with issues fairly.

There are a number of elements to this: • Employers and employees should raise and deal with issues promptly and not unreasonably delay meetings, decisions or confirmation of those decisions. • should act consistently • carry out any necessary investigations, to establish the facts of the case. • inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made. • allow employees to be accompanied at any formal disciplinary or grievance meeting. • allow an employee to appeal against any formal decision made

Warnings ACAS graduated warning system. Lots of case law on warnings Decide on appropriate action •

18. After the meeting decide whether or not disciplinary or any other action is justified and inform the employee accordingly in writing

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19. Where misconduct is confirmed or the employee is found to be performing unsatisfactorily it is usual to give the employee a written warning. A further act of misconduct or failure to improve performance within a set period would normally result in a final written warning

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20. If an employee’s first misconduct or unsatisfactory performance is sufficiently serious, may be appropriate to move directly to final written warning might occur where the employee’s actions have had, or are liable to have, a serious or harmful impact on the organisation

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21. A first or final written warning should set out the nature of the misconduct or poor performance and the change in behaviour or improvement in performance required (with timescale). employee should be told how long the warning will remain current. should be informed of the consequences of further misconduct, or failure to improve performance, within the set period following a final warning For instance that it may result in dismissal or some other contractual penalty such as demotion or loss of seniority.

Some cases • Davies v Sandwell MBC [2013]IRLR 374 ET cannot re-open a warning. Need to apply objective test of reasonableness • Airbus UK Ltd v Webb [2008] IRLR 309 • Way v Spectrum Property Care Ltd [2015] EWCA Civ 381. • Wincanton Group plc v Stone [2013] IRLR 178

Suspension employer should usually only consider suspension from work if there is: • a serious allegation of misconduct • medical grounds to suspend • workplace risk to an employee who is a new or expectant mother should not be used as a disciplinary sanction  If an employee is suspended, it does not mean they have done something wrong or that their employer assumes they have done something wrong Most disciplinary procedures will not require suspension  employee will usually be able to continue doing their normal role while the matter is investigated Suspension should usually only be considered if: • there is a serious allegation of misconduct and working relationships have severely broken down • employee could tamper with evidence, influence witnesses and/or sway the investigation into the allegation • there is a risk to other employees, property or customers • the employee is the subject of criminal proceedings which may affect whether they can do their job Additional considerations when suspending as part of a disciplinary procedure. • should be no assumption of guilt associated with a suspension and suspension must not be used as a disciplinary sanction • However, a suspension can still have a damaging effect on the employee and their reputation • if necessary, the suspension and the reason for it should be kept confidential, where possible. • If necessary to explain the employee's absence, an employer should discuss with the employee how they would like it to be explained to colleagues and/or customers Other considerations could include whether it is necessary to: • escort the employee from the workplace • remove the employee's workplace pass and/or IT access • ask the employee to not contact other employees during the investigation

Investigations – ACAS Step 1: Deciding if there needs to be an investigation Step 2: Preparing for an investigation Step 3: Carrying out an investigation Step 4: If there are witnesses Step 5: What happens after an investigation An investigation is to: • see if there is a case to answer

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make sure everyone is treated fairly gather evidence from all sides help the employer to see what should happen next At any stage the employer can still look at whether the formal procedure needs to carry on the issue can be resolved informally instead. If employer does not carry out a reasonable investigation, any decisions they make in the disciplinary or grievance case are likely to be unfair. This could risk legal action Investigations are covered by the Acas Code of Practice on disciplinary and grievance procedures, which is the minimum a workplace must follow. Your workplace might have its own policy or procedure. COA considered the scope of a reasonable investigation in a conduct dismissal in Shrestha v Genesis Housing Association [2015]EWCA Civ 94. Case discusses defences employee raises. They must be viewed plausible. No obligation to investigate all of them raised, C/A held in Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23,that the range of reasonable responses test applies as much to the question of whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to …the decision to dismiss.

Conduct of Hearing – disciplinary hearings Preparing for the hearing • should be held asap after the investigation, while giving reasonable time for the employee to prepare. • In good time before the hearing, the employer should put in writing to the employee o the alleged misconduct or performance issue o any evidence from the investigation o any other information they plan to talk about o the date, time and location of the hearing o information on the employee’s right to be accompanied to the hearing o the possible outcomes What happens in a disciplinary hearing • chance for both employer and employee to state their case. • The employer, employee and employee’s companion should make every effort to attend. • employer should: explain the employee’s alleged misconduct or performance issue go through the evidence make sure someone takes notes • employee should be given the chance to: set out their case, answer any allegations, ask questions, show evidence, call relevant witnesses (with good notice), respond to any information given by witnesses. • employee’s companion should be allowed to, set out the employee’s case, speak for the employee, talk with the employee during the hearing, take notes Some cases • Santamera v Express Cargo Forwarding t/a IEC ltd [2003] IRLR 273 • Phoenix House Ltd v Stockman (No2) (UKEAT/0284/17)

Other issues • Failure to attend a hearing • Right of appeal • Social Media-Taylor v Somerfield Stores Ltd (ETS/107487/2007).Post on YouTube. Tribunal held there was no evidence to indicate that the supermarket had been brought into disrepute and found the dismissal unfair Proof • S6 Employment Act 1980, onus of proof with regard to the dismissal lies on the employer • Factors: • Employer had genuine belief in guilt. • Reasonable grounds to base belief on. • Reasonable investigation carried out The Tribunal • Newbound v Thames v Water Utilities Ltd [2015] EWCA Civ 677. • A good case to focus on exploring unfairness. • Tribunal to consider: o Employers reason o Was it genuinely held? o Was dismissal a reasonable response of a reasonable employer? o Was a fair procedure followed? Grievances (Employee complaints) “…concerns, problems or complaints that employees raise with their employers.” Grievances: Procedure 1. Informal Resolution - Employees meant to try and solve informally 2. Grievance should be raised in writing - Formally to the line manager or human resource department 3. Meeting and Investigation - Initial meeting with employee and employer, purpose to enable employer to know problem and get info - Has right to bring a colleague or trade union to accompany 4. Communication decision to employee in writing - Make decision about grievance Can reject if found not justified - Or upload, or partially uphold if found grievance has basis and needs to be addresses and resolved in some way 5. Appeal - If employee unhappy with outcome What happens when two overlap – quite frequently

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When employee accused of misconduct – then themselves raises grievance, alleging that misconduct proceedings linked to inappropriate behaviour more widely within the workplace

Both disciplinary and grievance proceedings, in this case two options for employer – 1. Suspend disciplinary process whilst grievance dealt with and then one grievance solves, recontinue disciplinary process  but goes on for a lot longer, which employee might be trying 2. Can run both processes together at same time and combine The ACAS Code of Practice makes the following recommendations: (a) the employee should tell the employer of the grievance (b) the employer should hold a meeting with the employee to discuss the grievance (c) the employee should be told of the right to be accompanied (d) after the meeting, the employer should decide on the appropriate action (e) the employer should permit the employee to have a right of appeal • • • • • •

Step 1: Understanding the options Step 2: Raising a formal grievance Step 3: Responding to a formal grievance Step 4: The grievance meeting ...