If a business is to run efficiently, it must set and enforce appropriate standards of conduct and performance for its workforce and ensure that any grievances that employees may have about their employment are dealt with promptly and fairly. This section of the Guide covers the law and good practice on handling discipline and grievances with particular reference to the provisions of the Acas Code of Practice on discipline and grievance.
Although the minimum statutory discipline and grievance procedures were abolished with effect from 6 April 2009 there are certain transitional provisions which effectively mean that the statutory minimum disciplinary procedure will still apply in certain limited circumstances ( Repeal of the Statutory Procedures ).
Employees who are guilty of serious or persistent misconduct may end up being dismissed. This section therefore summarises the legal issues involved in dismissing an employee for misconduct. Readers may also wish to refer to other sections of the Guide, which deal in more detail with the legal framework relating to termination of employment (terminating employment) and unfair dismissal (unfair dismissal ).
In this section, the term 'misconduct' includes poor performance caused by an employee's lack of attention or application. Some employees, however, fail to meet the required standard of performance through illness or incapability rather than a lack of effort, making a disciplinary approach inappropriate. A discussion of the management of performance where the employee is not 'at fault', including the management of sickness absence, is found elsewhere in this Guide ( Managing performance ).
As well as discussing the general issues arising from the management of grievances (dealing with grievances), this section summarises the protection the law gives to workers who 'blow the whistle' on certain forms of wrongdoing ( Protection for 'whistleblowers' ) or who allege that their employer is not respecting their employment rights (asserting legal rights). It also outlines the protection that employees have from being unfairly treated or dismissed if they raise concerns about health and safety or take action in response to safety risks (health and safety concerns).
Repeal of the statutory procedures
Although the minimum statutory discipline and grievance procedures were abolished with effect from 6 April 2009 there are certain transitional provisions which effectively mean that the statutory minimum disciplinary procedure will still apply in certain limited circumstances.
Dismissal
The statutory discipline and dismissal procedure (the SDP), and the tribunal penalties for failure to follow it continue to apply if an employer has taken any of the following steps before 6 April 2009:
- sent the employee a Step1 letter setting out the reason why it is contemplating taking disciplinary action (other than a warning) or dismissing him or her;
- held a Step 2 meeting to discuss the problem (such as a disciplinary hearing), or
- dismissed the employee (whether with or without notice).
Grievances
The transitional arrangements for grievances are different depending on whether the matter the employee is complaining about occurred wholly before 6 April 2009 or whether it started before then but continued on or after it. In practice, companies may still be required to apply the statutory grievance procedure (SGP) late into 2009 and possibly 2010 if the relevant conditions are met.
The event triggering the grievance occurred wholly before 6 April 2009
Employers must continue to deal with grievances under the SGP if the matter the employee is complaining about occurred wholly before 6 April 2009.
As long as all the incidents/events complained about happened before 6 April 2009, employers must continue to apply the SGP irrespective of whether the employee makes their complaint to the employer before 6 April 2009 or on or after that date.
The event triggering the grievance continued on 6 April 2009 or later
The transitional rule is different where the action the employee is complaining about begins before 6 April 2009 but continues on or after it. In these cases an employer must still follow the SGP if the employee makes a complaint to a tribunal or sends the employer a written grievance on or before 4 July 2009. If the employee complains after that date, it is the ACAS Code of Practice that applies. However, the guillotine date is postponed to 4 October 2009 in a small number of jurisdictions with a six month time limit (the main ones being claims for equal pay or a statutory redundancy payment (see employment rights table)).
Managing grievances and dismissals during the transitional period
Dismissals
If you have taken any steps to dismiss an employee before 6 April 2009, or if you are in any doubt, follow the SDP. By following the SDP you will normally meet the provisions of the Code; but the reverse may not be true.
Grievances
The position is a little more complicated in relation to grievances because of the complex interaction between the employee’s obligation to send you a written grievance and the tribunal rules on whether a claim can be accepted.
As soon as an employee complains, find out when the action the employee is complaining about happened or started. If it is wholly before 6 April 2009 you should follow the SGP. If the action continued on or after 6 April you should seek advice from us.