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Disciplinary Issues and the New Code of Practice
March 2009
The current statutory disciplinary and dismissal procedures (DDP) will be replaced by a new voluntary ACAS Code of Practice on April 6 2009, which aims to promote fairness. So how should you then handle disciplinary issues?
New for old
The Code has much in common with the outgoing DDP - so you can still safely follow your old procedures to deal with disciplinary matters and dismissals. The DDP set minimum statutory procedures that employers had to follow. If they failed to do this, any subsequent dismissal of an employee would be “automatically unfair”. This will be removed when the Code takes effect. Sounds great – but what are you expected to do under the new Code?
Always investigate
Under the Code the first thing that will need to take place as soon as possible is a full investigation. If it will help, the matter can be discussed with an employee on an informal basis.
Trap. Under no circumstances should you use this meeting as an opportunity to impose any form of disciplinary sanction e.g. by giving a warning or dismissing the employee.
Provide Evidence
If, following the investigation you feel that disciplinary action is appropriate, write to the employee setting out the details of the disciplinary issue, poor performance. Under the DDP this was known as the “Step 1 letter”
Change. The Code says an employee must now be given access to all the evidence you have against them. This includes any written witness statements. An employer did not have to disclose these documents under the DDP – they just had to set out the employee’s alleged misconduct in writing.
Arrange a meeting
The letter should invite the employee to attend a disciplinary hearing – this was a “Step 2 meeting” under the DDP. It must be held as soon as possible yet still allow the employee enough time to consider the evidence and prepare their case. In most cases two or three days will be sufficient, but allow extra time if there is an unexpected absence. Employees must be given every opportunity to answer the allegations, question witnesses, and provide an explanation.
Appeals
Employees must be allowed to appeal against any decision that they think is wrong or unjustified – this was the “Stage 3 appeal” under the old DDP. Appeals should be dealt with as quickly as possible and a response given in writing to the employee.
The right to be accompanied
Employees now only have the right to be accompanied to a disciplinary hearing by either a workplace colleague or trade union representative. The same right does not exist at the investigatory stage. However, in order to show that you have followed a fair process it may be safer to allow a representative to attend both stages.
Warning
Where possible, the Code recommends that each stage is dealt with by a different individual, but it recognises that this may not be practicable for small businesses. As the matter progresses, the seniority of the person dealing with it, does not need to increase – what’s important is that you are impartial.
The new ACAS Code of Practice has much in common with the outgoing statutory disciplinary and dismissal procedures. So you can safely continue to use your old procedures – they won’t require a major overhaul when it comes into effect on April 6.
Source – Tips & Advice Personnel March 19 2009
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