Understanding the new disciplinary code
As you will probably be aware, following an outcry from employers, the section of the Employment Act 2002 relating to the disciplinary/grievance procedure has been dropped and a new ACAS Code of Practice for handling disciplinary and grievance issues came into force on 1 April 2009.
This will be welcomed by salon owners as the new code is much more straightforward. However, it should not be forgotten that tribunals can increase the award to an employee by 25% where the employer has failed to adequately follow the Code of Practice.
David Wright, who advises habia and salons in the UK, answers your questions regarding the new ACAS Code.
Following the introduction of the new Code will I need to redraft my disciplinary procedure?
Not necessarily, but you should certainly take the opportunity to review it. Remember, the disciplinary procedure forms part of your employees contract and, therefore, you will need to consult with them regarding any changes.
Is there anything new I need to know concerning dismissals?
The new Code does not apply to dismissals for redundancy although a reasonable process needs to be followed. The main change is that you do not need to go through the disciplinary procedure when employees on a fixed-term temporary contract ends. This makes sense as the temporary employee has not actually committed any misconduct.
What in practical terms do I need to do differently under the new Code?
It depends how detailed your existing disciplinary procedure is. Your procedure should ensure:
- Where practical, the dismissal and appeal are heard by different people
- The employee has to make every effort to attend a disciplinary hearing. (The Code gives helpful guidance as to how to handle cases where the employee claims they are sick and unfit to attend)
- That the employee is advised in advance of the specific allegations against them and are given copies of any documentation, such as statements
- That employees wishing to appeal against a sanction are now required to indicate in writing the basis of their appeal.
I have investigated an incident and it appears that a disciplinary hearing is required. Is there anything new I should do under the new Code?
See the previous answer in terms of the employee needing full details of the allegation and any evidence in advance. In addition, the Code states you should advise the employee of the potential outcome. This does not mean you have to predict what will happen - it would be sufficient to say "if the allegation is proven this would constitute misconduct, or gross misconduct, resulting in a warning or dismissal."
Does the Code now clarify who the employee can be accompanied by?
Yes, it specifically gives the right to be accompanied by a trade union representative or a work colleague. It may be that your existing procedure already clarifies the right of representation. In salons, it is rare that employees are in a trade union and it might be that a colleague can be of little more than token help. Some salon owners allow family members to provide support to staff. The main difference is that you have the right to specifically refuse an employee the right to be accompanied by a solicitor.
Are there any implications for the grievance procedure?
The changes are of much less significance, but the provisions regarding who an employee can be accompanied by are exactly the same as for disciplinary issues as detailed in the question above.
The Code generally sounds to be good news for employers. Is this correct?
Yes, the new Code is to be welcomed. However, under the old rules an employer who hadn't fully followed the process used to able to argue that the failure made "no difference" to the outcome. This facility has now been removed and, therefore, while the Code is simplified, employers who fail to follow all the stages will find any dismissal automatically unfair.
More of David Wright's Legal Advice for Salon Owners
