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Grievance and disciplinary procedures: ACAS Code

Employment Act 2008 encourages issues to be resolved internally where possible, without recourse to tribunals. Compensation can be adjusted up or down if a party fails to observe an ACAS Code of Practice.

Summary of the rules (Employment Act 2008)

Any compensation a claimant receives may be reduced by up to 25% if he or she unreasonably fails to comply with an ACAS 'Code of Practice: Disciplinary and Grievance Procedures'. Similarly, compensation may be increased by up to 25% if the employer unreasonably fails to comply with the Code. The Code is at www.acas.org.uk/index.aspx?articleid=2174.

For example, at paragraph 31 the Code says: "If it is not possible to resolve a grievance informally employees should raise the matter formally and without unreasonable delay with a manager who is not the subject of the grievance. This should be done in writing and should set out the nature of the grievance."

ACAS has also produced a non-statutory guide - www.acas.org.uk/index.aspx?articleid=2179 - which supplements the Code. Tribunals are not required to pay regard to this guide (nor to the 'Foreward' of the Code itself), but it is expected that they will do so.

Scope of the rule on adjustment of compensation.

The rule in Employment Act 2008, allowing compensation to be adjusted up or down by up to 25% for an unreasonable breach of the Code, will not apply to all disputes.

This possibility of adjustment only applies to complaints by employees. So there could be no 25% adjustment where the complainant is a job applicant who has not been taken on by the employer, perhaps because of alleged discrimination.

Also this possibility of adjustment applies only if the person is an employee in the legal sense. This means there will be no 25% adjustment where, for example, the case is brought by a self-employed person falling within the Equality Act or DDA (see Employment: Scope).

Further, the rule allowing for the adjustment only applies where the matter is one to which the Code applies. Tribunal decisions may be needed to determine just what matters the Code applies to. The Code says (in paragraph 1) that it is designed to help employers, employees and their representatives deal with disciplinary and grievance situations in the workplace. It expands on what this means:

"Disciplinary situations include misconduct and/or poor performance. If employers have a separate capability procedure they may prefer to address performance issues under this procedure. If so, however, the basic principles of fairness set out in this Code should still be followed, albeit that they may need to be adapted. Grievances are concerns, problems or complaints that employees raise with their employers."

The Code also says that it does not apply to redundancy dismissals, or the non renewal of fixed term contracts on their expiry.

Further links

Previous rules - Employment Act 2002

The rules above came into effect on 6 April 2009, subject to transitional provisions. Compared with the previous rules under Employment Act 2002, the new rules allow greater flexibility when resolving disputes in the workplace. The 2002 rules were supposed to encourage informal resolution of disputes, but in practice often led to disputes getting formalised at an earlier stage than before. The most important feature of the 2002 rules, now abolished, was that a claimant had to raise a written grievance before he was able to put in a claim to an Employment Tribunal.

Claims started now will fall within the new Employment Act 2008 rules (except possibly a very late claim about an act before 6th April 2009). The previous rules may still be relevant to pre-existing claims. More on the pre-2009 rules (Employment Act 2002) rules.


Employment: complaints and going to court

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Last updated 5th November, 2010