How can we manage a conflict between the ACAS Code and our own disciplinary procedure?

Q: How can we manage a conflict between the ACAS Code and our own disciplinary procedure?

A: Jayne Harrison, head of employment law at Cleggs Solicitors, says …

The ACAS Code is intended to provide practical guidance to employers and employees on how to fairly carry out disciplinary procedures for misconduct or poor performance. Failure to follow any part of the ACAS Code does not of itself make an employer liable to proceedings.

However, employment tribunals must take the ACAS Code into account where relevant when considering whether an employer has acted reasonably or not. Furthermore, if the employee wins an unfair dismissal case (or one of a number of other types of case) the tribunal can adjust the amount of compensation by up to 25% either way, if either the employer or employee has unreasonably failed to comply with the ACAS Code.

Tribunals will also scrutinise if an employer has followed its own disciplinary procedure as well. The ACAS Code is supplemented by the Non statutory ACAS guide. Unlike the ACAS Code, this does not need to be taken into account by tribunals, and neither can parties be penalised for failure to follow it. However, it does provide practical guidance on the handling of disciplinary matters, based on good industrial relations practice and the accumulated wisdom of several decades of unfair dismissal law.

The ACAS Code is an important document and should always be borne in mind by an employer when drafting or implementing a disciplinary procedure. This would hopefully avoid any conflict between the ACAS Code and an employer’s own disciplinary procedure. However, it must be emphasised that simply following the ACAS Code may not be sufficient to persuade an employment tribunal that an employer has dismissed fairly in the event the disciplinary hearing leads to a dismissal.

The law of unfair dismissal is primarily concerned with whether an employer acted reasonably in all the circumstances, and so there is no one-size-fits-all answer to every case. That is why an employer should also follow their own disciplinary procedure as well. More may be required from a procedural viewpoint, for example, on issues involving anonymous informants and whether to allow cross-examination of witnesses at hearings, which are not dealt with in the ACAS Code. The dismissal must also be substantively fair, that is, it must not have been outside the “band of reasonable responses” for the employer to treat the misconduct or poor performance as grounds for dismissal.

Employers also need to be aware of the contractual status of their own disciplinary procedure as well. If an employer has a contractual disciplinary procedure and fails to follow this then an employee could claim breach of contract as well as an unfair dismissal claim. It is not advisable for employers to have disciplinary procedures that are contractual and employers should ensure that if reference is made to their disciplinary procedures in the contract of employment that there is specific wording that makes it clear that the disciplinary procedure is non contractual.

So before commencing any disciplinary action an employer will need to be familiar with the ACAS Code of practice and the non-statutory ACAS guide as well as their own disciplinary procedure. If in doubt, it is far better to take legal advice early on about disciplinary action than to wait and then get a claim through from an employee.

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