As of 6 April 2009, the Employment Act 2008 repealed the Statutory Dispute Resolution Procedures in their entirety. In their place is a voluntary Advisory Conciliation and Arbitration Service (ACAS) Code of Practice, which sets out the basic principles for ensuring fairness and transparency when handling disciplinary problems and grievances in the workplace. The Code of Practice does not apply to dismissals due to redundancy nor to the non-renewal of fixed term contracts on their expiry.
It is not automatically unfair dismissal if an employer fails to comply with the Code of Practice. However, an employment tribunal has the discretion to increase or reduce an award by up to 25 per cent where either side unreasonably fails to comply with the new Code.
In a recent case, a sacked delivery driver won his claim of unfair dismissal, even though the Employment Tribunal (ET) found that he had been an ‘unreliable’ employee and rejected allegations made by him against the office manager of unfair conduct during the disciplinary hearings. The ET upheld the man’s unfair dismissal claim because there were serious flaws in the company’s handling of the disciplinary process.
The Code of Practice advises that attempts should always be made to settle disciplinary and grievance issues in the workplace. Where this is not possible, the use of an independent third party should be considered to help resolve the problem. This need not be someone from outside the organisation but could be an internal mediator, as long as they are not involved in the disciplinary or grievance issue. However, in some cases, an external mediator might be appropriate. ACAS provides guidance on mediation.
The Code of Practice is supported by non-statutory guidance, which provides good practice advice on dealing with discipline issues and grievances in the workplace. The guidance contains sample disciplinary and grievance procedures, as well as sample letters.