employment law

The ACAS Code of Practice; difficult or problem employees

The ACAS Code of Practice came into effect April 2009.

Employers are expected to follow the Code. Failure to do so does not render the dismissal automatically unfair but it will be taken into account by a Tribunal both when determining liability and also in assessing compensation.

The Code is available on the ACAS website: www.acas.org.uk/drr

ACAS publish a booklet called “Discipline and Grievances at work the ACAS guide” which is a more comprehensive guide on dealing with these matters and gives examples of specific cases and how to deal with them.

The Code sets out 6 steps employers should normally follow:

1. Establish the Facts

This would usually be done by carrying out an investigation. You could have an investigatory meeting with the employee to discuss the issues – although it should not be treated as a disciplinary meeting.

In other circumstances it might be undertaken by taking statements from other employees to establish the facts of a situation.

It should be done quickly and without delay. There is no specific time limit but as a guideline it should be done within 2 or 3 working days of the problem occurring and certainly within a week.

In misconduct cases, ideally the people who carry out the investigation should be different to those dealing with the disciplinary.

In the investigatory meeting no disciplinary action should be taken. Any disciplinary action should only be implemented at a separate disciplinary meeting. The right to be accompanied only applies at a disciplinary meeting and therefore is not relevant to the investigatory meeting.

It might be appropriate to consider suspending an employee at this stage. It would be appropriate in sensitive situations such as allegations of sexual harassment, dishonesty etc. Any suspension should be brief and be paid as suspension is a neutral act.

2. Inform the employee of the problem

If after carrying out the investigation you consider there is a case for the employee to answer you should notify them of this in writing.

The notification should contain enough information about any alleged misconduct or poor performance and the possible consequences to enable the employee to prepare to answer the case.

If you are intending to rely upon any statements or written evidence these should be provided with the notification of the disciplinary hearing.

The notification should give details of the time and venue of the meeting and advise of their right to be accompanied.

The time of the meeting must allow the employee time to prepare but there must not be unreasonable delay.

Five working days should be sufficient time for the employee to prepare, although more time may be appropriate if the case is complex and there is a lot of evidence.

3. Hold a meeting with the employee to discuss the issues

The employer should explain the nature of the complaint and go through the evidence gathered.

The employee must be allowed to set out their case and answer any allegations made. The employee must be allowed an opportunity to ask questions, present evidence and call any witnesses they wish to call.

Employees should give advance notice of any witness evidence they wish to rely upon.

4. Allow the employee to be accompanied to the meeting

The notification of the meeting should inform the employee of this right.

There is not right for an employee to have a legal advisor present at the disciplinary meeting. The companion may be a fellow worker, a trade union rep or an official employed by a trade union.

An employee must make a reasonable request to exercise the right to be accompanied. Employers should allow this if it is reasonable. It is unreasonable for an employee to insist on being accompanied by a companion who would prejudice the meeting.

The companion should be allowed to address the hearing, put forward the employee’s case, to respond on behalf of the worker to views expressed and confer with the worker. The companion cannot however answer questions directed to the worker.

5. Decide an action

Following the meeting you should decide whether disciplinary action should be taken and inform the employee in writing of your decision.

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 a failure to improve in a defined period will usually result in a final written warning.

If misconduct or performance is sufficiently serious it might be appropriate to move to a final written warning.

Any warning should set out the nature of misconduct or poor performance and set out the improvement in behaviour or performance required within a defined timescale.

The employee should be told how long the warning will remain current. This is usually 6 or 12 months.

The employee should also be informed of the consequences of further misconduct or failure to improve within a set period, i.e. a final written warning or dismissal or some other contractual penalty such as loss of seniority or demotion.

If a decision to dismiss is taken the employee should be informed as soon as possible of the reasons for the dismissal, the date when the contract will end, the appropriate period of notice and the right of an appeal.

Some acts may be so serious to warrant dismissal without notice. It is still important that the disciplinary process is followed before dismissing on this ground.

The disciplinary rules should give examples of acts that the employer considers represent gross misconduct – such as theft, dishonesty, violence, negligence or insubordination.

Where an employee persistently fails to attend a disciplinary hearing without good cause the employer should make a decision on the evidence available.

The employee should be made aware of their right to appeal.

This should be done in the letter confirming the outcome of the disciplinary process. Appeals should be heard without unreasonable delay.

Employees should let employers know the grounds of their appeal in writing.

If possible appeals should be dealt with by managers not previously involved in the case.

Employees have a right to be accompanied at appeal hearings and should be informed in writing of the results of the appeal as soon as possible.

Following the Code

The Code emphasises the importance of dealing with issues “fairly, promptly, consistently, carrying out all necessary investigations and giving employees the opportunity to put their case before any decisions are made” [Para 4]

Basically the employer has to act fairly and reasonably.

Failure to follow the Code is relevant to the issue of determining the dismissal was reasonable under Section 98(4) of the ERA.

It is also taken into account on the assessment of compensation and in the event of a finding of unfair dismissal

Further reading:

Terminating an employee’s contract of employment (Employment Law)

Settlement Agreements (Employment Law)

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