THE ACAS CODE OF PRACTICE ON DISCIPLINARY AND GRIEVANCE PROCEDURES 2009 AND WHAT IT MEANS FOR EMPLOYERS

These changes affect all employers.  For more details, read on.

1.         Background – the old regime

·                    Mandatory statutory disciplinary and grievance procedures were introduced in 2004 requiring employers to use a “three-step” procedure:  (1) Statement of grounds for action / grievance, (2) a meeting, and (3) the right of appeal against the employer’s decision.  This was supplemented by the 2000 ACAS code of practice on disciplinary and grievance procedures. 

·                    The old regime was abolished from 6 April 2009 and a revised ACAS Code of Practice on Disciplinary and Grievance Procedures (the “2009 Code”) was introduced, supplemented by an ACAS Guide on Discipline and Grievances at Work (the “Guide”) which is meant to provide practical advice for dealing with discipline and grievances in the workplace. 

2.         What has changed?

·                    The 2009 Code no longer contains mandatory procedural rules. 

·                    The law still requires Tribunals to take into account the 2009 Code when considering relevant cases. 

·                    Employers must adopt and use procedures similar to those in use previously. 

·                    Not to adopt any kind of procedure is not a sensible option.

·                    Informal resolution of disputes is encouraged before resorting to procedures. 

·                    If disputes cannot be resolved, ACAS recommends using a mediator. 

·                    The 2009 Code does not apply to redundancy dismissals (but the established procedural requirements for a fair redundancy dismissal continue to apply) or the non-renewal of fixed term contracts on their expiry. 

3.         Fairness

The key principle is to deal with disciplinary or grievance issues fairly which, under the 2009 Code, involves the following:-

·                    deal with issues promptly and without unreasonable delay;

·                    all parties should act consistently;

·                    investigate the facts;

·                    inform the employee and allow him/her the opportunity to put his/her case;

·                    allow the employee to be accompanied at any formal disciplinary or grievance meeting;

·                    allow the employee to appeal against any formal decision;

·                    keep written records.

4.         Failure to comply with the Code

·                    If an employer does not follow the 2009 Code, an Employment Tribunal must take this into account and may increase or decrease the amount of any award to the employee by up to 25%, according to who was at fault. 

·                    It is too early to say how Tribunals will use the Guide to interpret and apply the 2009 Code. 

5.         Transitional Provisions

·                    Complex transitional arrangements apply to any existing disciplinary or grievance issues which will impact on disciplinary cases throughout 2009 and, in cases that are appealed, as far ahead as 2011. 

·                    It is essential to take professional advice on this. 

6.         What should an employer do now?

·                    Review existing procedures and, if need be, amend them to bring them into line with the Code. 

·                    Ensure they provide maximum flexibility to deal with different situations. 

·                    Consult the employees and their representatives on new procedures. 

·                    Train managers to deal effectively with disciplinary issues and grievances.

·                    Keep procedures under review.

If you need a more detailed explanation of how the new law will affect your business, please let us know. 

Stephen Morrall
Elizabeth Park

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This Update is based on the law in force in England and Wales as at 1 April 2009.  It is designed to provide general guidance only and is not intended to be comprehensive or to constitute professional advice.  Specific advice should always be sought, and should only be relied on, by reference to particular facts and circumstances.  If you require advice on a particular situation concerning the subject matter of this Update, please contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it , This e-mail address is being protected from spambots. You need JavaScript enabled to view it or your Middleton Potts Client Partner.