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Are businesses ready for the new ACAS Code of Practice ?

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The new ACAS Code of Practice replaces the statutory dismissal, disciplinary and grievance procedures from 6th April 2009. Set out below is a summary of the changes. Removal of the Statutory Dismissal, Disciplinary and Grievance Procedures. The much controversial statutory dismissal and disciplinary procedure (SDDP) and statutory grievance procedures (SGP) will be abolished and replaced with a new regime on 6th April 2009. Who is Affected ? All employers, no matter the size of the organisation will be affected. The new ACAS Code of Practice (Code) is intended to provide the basic requirements of fairness and reasonable behaviour in most instances. The Code will apply to all employees (not workers or agency workers unless agreed by the employer) and if not followed will expose the employer to potentially successful claims brought in the Employment Tribunal. What are the Changes ? 1) The Code applies to all formal disciplinary procedures and unlike the SDDP not just dismissals, demotions or suspension without pay. Management must therefore be familiar with and follow the Code before implementing any disciplinary action including (but not limited to) dismissals, written warnings and final written warnings. 2) Unlike the SDDP failure to follow the Code will not result in a dismissal being automatically unfair. However, if the employer did not follow the Code the employee is likely to be successful in a claim for unfair dismissal and the Employment Tribunal will have power to increase any compensation awarded by up to 25 percent. 3) The Code does not apply to redundancy dismissals or non-renewal of fixed term contracts. However, it is advisable to follow the principles in the Code to minimise successful Employment Tribunal claims and to ensure fairness for the employee. 4) The Code also applies to grievances raised by the employee and sets out the procedure to follow when a grievance is raised. Under the SGP employees were unable to bring a claim in the Employment Tribunal until a grievance had been raised. This formal requirement has been removed enabling the employee to bring a claim in the Employment Tribunal without first having raised a grievance. However, a failure to raise a grievance pursuant to the Code may adversely affect the success of or compensation awarded in any subsequent Employment Tribunal litigation. 5) Whereas an employer had an obligation to investigate a grievance under the SGP raised by an employee who had left employment this is no longer the case. However, dependant on the nature of the complaint raised employers should consider whether it should investigate to minimise Employment Tribunal claims. Summary of the Code A. Disciplinary Matters. 1) Investigate to establish the facts of each case. 2) Inform the employee in writing of the allegations raised against them. 3) Provide the employee with advance notice of any witnesses the employer intends to call. 4) Hold a meeting an allow the employee to be accompanied by a companion (Trade Union Representative or colleague) and allow the employee to state his or her case, call their own witnesses and raise points about the employer's witnesses. 5) Decide which action is fair and appropriate and inform the employee in writing. 6) Provide a right of appeal. B. Grievances. 1) The employee should inform the employer the nature of the grievance if it is not possible to resolve informally. 2) A meeting should be held to discuss the grievance and the employee has a right to bring a companion (as above) to the meeting. 3) The employer must decide which action is fair and appropriate and inform the employee in writing. 4) If not resolved the employer should allow the employee to take the grievance further by way of an appeal. Transitional Procedures There are transitional procedures in place where grievance and/or disciplinary action occurred entirely before 6th April 2009 or started before 6th April 2009 and continued thereafter. Gepp & Sons can advise on which regime applies. To discuss any questions you may have regarding the new ACAS Code of Practice, please contact one of experts on 01245 228141 or email to - ends - Notes to editors: • For additional information or comment please contact:Alexandra Dean of Gepp & Sons