Employment Law Solicitors: ACAS Code of Practice On Disciplinary Procedures   From the 6th April 2009, employers are now expected (but are not legally obliged) to follow the ACAS Code of Practice on Disciplinary Procedures (although the ACAS Code of Practice does not apply to non-renewal of fixed term contracts or redundancy dismissals) when dismissing an employee.

Whilst there is no legal obligation upon employers to follow the ACAS Code of Practice, the potential penalties for failing to do so can be severe, because where an employment tribunal finds that there has been an unreasonable failure by the employer to comply with a part of the ACAS Code of Practice, then they have the power to increase their award of compensation by up to 25%. Under the ACAS Code of Practice on Disciplinary Procedures, when bringing disciplinary action against an employee (including disciplinary action where dismissal is contemplated), an employer should follow the following procedure:-

1. Pre-Disciplinary Investigation: Before undertaking any disciplinary proceedings, the employer should conduct an investigation to ascertain the full facts. This may necessitate a formal investigatory meeting with the employee. The investigation should preferably be carried out by a person different to the individual who would conduct any future disciplinary prceedings. Ideally, the employee should be permitted to be accompanied to any investigatory meeting by either a work colleague or Trade Union representative. Should suspension of the employee be required during the investigation, then the period of suspension should be kept to a minimum and it should be on full pay.

    

2. Written Notification Of Intended Disciplinary Action: The employer should formally write to the employee setting out the circumstances which have led them to consider dismissal or disciplinary action and what the potential ramifications are. The letter should also invite the employee to a disciplinary meeting and the employee should be provided with sufficient time to prepare for it. A full copy of the evidence from the investigation should be provided to the employee (including copies of any witness statements) and the employee has the legal right to be accompanied to the meeting by a work colleague or Trade Union representative.

    

3. Disciplinary Hearing: The hearing should be fair and objective. The employer should fully explain the case against the employee to them and discuss the evidence. The employee should be given all the time they require to set out their defence and should be permitted to call witnesses (so long as they provide appropriate notice of their intention to do so prior to the meeting). The employee should also be formally notified of the outcome of the hearing in writing post meeting and be given the right and opportunity to appeal.

    

4. Appeal Hearing: The employer should appoint a more senior manager to represent them at an appeal hearing and again the employee has the legal right to be accompanied at the appeal hearing by either a work colleague or Trade Union representative. The same principles that apply to a disciplinary hearing as set out above in terms of manner in which it is conducted, also apply to the appeal hearing

Where one or other of the parties has failed to follow the ACAS Code of Practice and the employment tribunal deems that failure to be unreasonable, then the tribunal has the power to raise or decrease the award of compensation by up to 25%, contingent upon which is the culpable party and the extent of unreasonableness of the failure. Furthermore, in accordance with the case of Polkey v A. E. Dayton Services Ltd (1988), where the tribunal deems the dismissal to have been unfair on procedural grounds, it has the power to decrease or eradicate the compensation award should it determine that a fair dismissal would have occurred anyway had the employer followed a fair procedure.

The Employment Law Solicitors, the brand, is part of Antrobus Solicitors, a firm regulated by the Solicitors Regulation Authority. Details of the professional rules which regulate solicitors can be found at the following website address: http://www.rules.sra.org.uk