The Draft Code of Practice on Disciplinary and Grievance Procedures produced by ACAS has been laid before Parliament and came into force on 4 September - along with the new right to be accompanied by a union official or fellow worker in disciplinary or grievance proceedings.

The Code amends the existing Code on disciplinary procedures, adds a new section on grievance procedures and sets out guidance on the new right to be accompanied
The Code itself is not legally enforceable, but it must be taken into account by Tribunals in interpreting the new right and a failure to observe the Code on a disciplinary must be taken into account by Tribunals in dismissal cases and may well lead to a finding of unfair dismissal (see Lock v Cardiff Railway Co. Ltd [1998] IRLR 358).

Here, we focus on some of the main changes and key issues.

Discipline

The Code includes examples of matters that may be covered by disciplinary rules: "misconduct, sub-standard performance (where not covered by a separate capability procedure), harassment or victimisation, use of company facilities including computer facilities (eg e-mail and the internet), poor timekeeping and unauthorised absences".

This Code acknowledges, but does not specifically recommend, that certain matters, for example performance or ill-health, are often better dealt with by separate capability procedures.

The Code also includes for the first time a suggested list of matters which may amount to gross misconduct: 

  • theft, fraud and deliberate falsification of records
  • physical violence
  • serious bullying or harassment
  • deliberate damage to property
  • serious insubordination
  • misuse of an organisation's property or name
  • bringing the employer into serious disrepute
  • serious incapability through alcohol or illegal drugs 
  • serious negligence which causes or might cause unacceptable loss, damage or injury
  • serious infringement of health and safety rules
  • serious breach of confidence (subject to the whistleblower legislation)

The Code emphasises that even in cases of apparent gross misconduct, there must be a proper investigation as part of a formal procedure.

In a welcome development, the Code specifically refers to the need for procedures to "have regard to the requirements of natural justice", so workers should be informed in advance of the allegations made together with the supporting evidence and be given the opportunity of challenging the allegations and evidence before decisions are reached.

This all points to the need for a hearing and the Code says that before a decision is reached or disciplinary action is taken there should be a hearing. This requirement for a hearing is pivotal because the right to be accompanied only arises where there is a procedure which involves the worker being invited or required to attend a hearing.
The Code recommends a procedure should incorporate three stages:

1 oral warning or written warning
2 final written warning
3 dismissal or other sanction.

The Code suggests various penalties, such as loss of seniority, which are only permissible if the contract allows.

Whilst the Code stresses the need to avoid discrimination on grounds of race, gender or disability, it does not emphasise the need to make reasonable adjustments to ensure that the procedure does not discriminate against workers who are disabled within the meaning of the Disability Discrimi-nation Act, save in relation to ill-health absences. This point can also be made in relation to the sections on grievance and accompaniment.

The Code emphasises that the opportunity to appeal against a disciplinary decision is essential to natural justice.

Grievance

A Code setting standards for grievance procedures is welcome. The Code now contains a positive statement that it is good employment practice to have a grievance procedure and acknowledges that where more than one person has a grievance on an issue, it may be appropriate to resolve the matter with the union collectively.

The suggested procedure involves stages before a line manager; a more senior manager and a final stage with the chief executive, managing director or an authorised deputy, but the number of stages may depend on the size and resources of the organisation.

The Code sensibly suggests that organisations may wish to have specific procedures for discrimination, bullying or harassment and also to consider whether it is appropriate to have a specific whistleblowing procedure.

Statutory right to be accompanied

This right applies to "workers", but the draft Code wrongly says that this excludes the genuinely self-employed.

The Code says that whether a worker has a right to be accompanied at a disciplinary hearing will depend on the nature of the hearing. It suggests that informal interviewing or counselling sessions would not require the worker to be accompanied, so long as they do not result in a formal hearing. It stresses that investigations into the facts should not be allowed to elide into a disciplinary hearing. However, all too frequently, "informal interviews" or "investigatory meetings" where the worker is not accompanied lead on to disciplinary hearings and comments made by the unaccompanied worker at the initial stage are then used against her or him.

The right to be accompanied at grievance hearings arises where the grievance concerns the performance of a "duty by an employer in relation to a worker". This is expanded in the Code as including a complaint of breach of a statutory or common law duty, so that grievances about bullying and harassment would be covered as arising out of the employer's duty of care. Pay will only be covered where it concerns an amount the employer is under a duty to pay by contract or by statute, not where the worker is seeking a pay rise unless the worker has a contractual right to the increase. Disputes about a pay or grading exercise are likely to be covered if they arise out of the contract.

The right to accompaniment is not limited to recognised unions, but the Code states that where a trade union is recognised, it is good practice for an official from that union to accompany.

The Code emphasises that arrangements for the hearing should include reasonable adjustments for any disabled person and also the possible need for translation facilities.

The rights of the companion at the hearing are fleshed out only a little beyond the bare bones of the statute. The companion should be allowed to ask questions and should "with the agreement of the employer be allowed to participate as fully as possible in the hearing". The companion should be permitted reasonable time to confer privately with the worker, in the hearing or outside.