Draft for consultation

Transcription

1 Draft fr cnsultatin Draft Cde f Practice n discipline and grievance May 2008 Further infrmatin is available frm

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3 CONSULTATION ON REVISED ACAS CODE OF PRACTICE ON DISCIPLINE AND GRIEVANCE In 2006 the Gvernment invited Michael Gibbns t review the ptins fr simplifying and imprving all aspects f emplyment dispute reslutin, t make the system wrk better fr emplyers and emplyees. Michael Gibbns reprted n his review in early and building n the recmmendatins cntained in his reprt the Gvernment undertk a public cnsultatin n measures t help reslve disputes successfully in the wrkplace 2. Fllwing this public cnsultatin the Gvernment intrduced an Emplyment Bill at the end f 2007 setting ut a number f changes t the law relating t wrkplace dispute reslutin including the repeal f the statutry dismissal and discipline prcedures intrduced in The remval f the statutry dismissal and discipline prcedure will have an impact n Acas cde f practice n discipline and grievance and we are therefre revising the cde t take accunt f the changes set ut in the Emplyment Bill. In revising the cde we have been cnscius that many f the respnses t the Gvernment s cnsultatin undertaken fllwing the Gibbn s review called fr a shrter cde which cncentrates n the key principles that underpin the handling f disciplinary and grievance situatins in the wrkplace. As a result the revised cde is cncise and principles-based. We understand that the Gvernment plan t intrduce the changes in wrkplace dispute reslutin in April 2009 and we intend that the revised Acas cde will cme int effect n the same date. At the same time Acas will als be publishing fuller, freestanding, nn-statutry guidance prviding supprting infrmatin n handling wrkplace disciplinary and grievance issues. A cpy f ur prpsed revised cde is attached and we wuld welcme cmments n the draft. It is divided int fur main sectins 1) A frewrd, which des nt frm part f the statutry cde 2) An intrductin setting ut sme key principles t be fllwed when handling disciplinary and grievance situatins 3) A sectin n discipline 4) A sectin n grievances 1 Better Dispute Reslutin: a review f emplyment dispute reslutin in Great Britain Michael Gibbns DTI March Success at Wrk: Reslving disputes in the wrkplace A cnsultatin DTI March 2007

4 Cmments n the cntent and structure f the revised cde shuld be sent via pst, r fax by 25 July 2008 t: Gerge Byce Acas D & G cde revisin Brandn Huse 180 Brugh High Street Lndn SE1 1LW Fax n: [email protected] When respnding, please state whether yu are respnding as an individual, r representing the views f an rganisatin. If respnding n behalf f an rganisatin please make it clear wh the rganisatin represents and, where applicable, hw the views f members were assembled. Cmments received as part f this cnsultatin may be made publicly available. If yu d nt wish all, r part f yur respnse (including yur identity) t be made public please state clearly in yur cmments which parts yu wish t be kept cnfidential. Where cnfidentiality is NOT requested we may make respnses available t enquirers t publish them by any means. Further cpies f this cnsultatin dcument can be btained frm the Acas website at Acas 2 May 2008

5 DRAFT FOR CONSULTATION Draft Acas Cde f Practice n discipline and grievance May 2008

6 DRAFT CODE OF PRACTICE - DISCIPLINE AND GRIEVANCE Frewrd The Acas statutry Cde f Practice n discipline and grievance is set ut at paras 1 t 43 n the fllwing pages. It prvides basic practical guidance t emplyers, emplyees and their representatives and sets ut principles fr handling disciplinary and grievance situatins in the wrkplace. A failure t fllw the Cde des nt, in itself, make a persn r rganisatin liable t prceedings. Hwever, emplyment tribunals will take the Cde int accunt when cnsidering relevant cases. Tribunals will als be able t adjust any awards made in relevant cases by up t 25 per cent fr unreasnable failure t cmply with any prvisin f the Cde. Emplyers and emplyees shuld d all that they can t reslve disciplinary and grievance issues in the wrkplace. Where this is nt pssible emplyers and emplyees shuld cnsider using a third party t help reslve the prblem. Recurse t an emplyment tribunal shuld nly be a last resrt. Mre cmprehensive advice and guidance n dealing with disciplinary and grievance situatins is cntained in the Acas guidance bklet [name t be decided]. The bklet als cntains mdel disciplinary and grievance prcedures. Cpies f the guidance can be btained frm Acas.

7 INTRODUCTION 1. This cde is designed t help emplyers, emplyees and their representatives deal with disciplinary and grievance situatins in the wrkplace. 2. Many ptential disciplinary r grievance issues can be reslved infrmally. A quiet wrd is ften all that is required t reslve a prblem. Hwever, where infrmality des nt wrk the matter may be pursued frmally. 3. Fairness and transparency are prmted by develping rules and prcedures fr handling disciplinary and grievance situatins. These shuld be set dwn in writing, be specific and clear and be agreed wherever applicable with trade unins r emplyee representatives. It is als imprtant t ensure that emplyees and managers understand hw they are t be used. 4. Where sme frm f frmal actin is needed, what actin is reasnable r justified will depend n all the circumstances f the particular case. The size and resurces f the emplyer shuld always be taken int accunt. In small rganisatins it may smetimes nt be practicable t take all f the steps set ut in this Cde. Hwever, the key elements f gd practice that emplyers and emplyees shuld wrk t are set ut in the paragraphs that fllw. 5. Emplyers and emplyees shuld d all that they can t reslve disciplinary and grievance issues in the wrkplace. Recurse t an emplyment tribunal shuld nly be a last resrt. 6. Whenever a frmal prcess is being fllwed it is imprtant t deal with issues fairly. There are a number f elements t this. Issues shuld be dealt with prmptly. Meetings and decisins shuld nt be unduly delayed. Emplyers shuld act cnsistently and ensure that like cases are treated alike. Apprpriate investigatins shuld be made, t establish the facts f the case. Any grievance r disciplinary meeting shuld, s far as pssible, be cnducted by a manager wh was nt invlved in the matter giving rise t the dispute. Where the emplyer is raising a perfrmance prblem the immediate manager wuld be invlved. An emplyee shuld be infrmed f the basis f the prblem and have an pprtunity t put their case in respnse befre any decisins are made. An emplyee has the right t be accmpanied at any disciplinary r grievance meeting. An emplyee shuld be allwed t appeal against any frmal decisin made. 7. It is gd practice t keep written recrds during disciplinary and grievance cases. A written recrd shuld be kept f the utcme.

8 DISCIPLINE Keys t handling disciplinary prblems in the wrkplace Establish the facts f each case 8. It is imprtant t investigate ptential disciplinary matters prmptly t establish the facts f the case befre memries f events fade. 9. If there is a purely investigatry meeting this will nt by itself result in any disciplinary actin. Hwever, it shuld be made clear t the emplyee that the investigatin may lead t disciplinary charges being raised. The statutry right f accmpaniment will nt apply, but it is gd practice t allw the emplyee t be accmpanied. 10. In thse cases where a perid f suspensin with pay is cnsidered necessary, this perid shuld be kept as brief as pssible. Infrm the emplyee f the prblem 11. If, in light f the investigatin, it is decided that there is a disciplinary case t answer, the emplyee shuld be ntified f this in writing. 12. This ntificatin shuld cntain sufficient infrmatin t let the emplyee knw what the alleged prblem is and its pssible cnsequences. Hld a meeting with the emplyee t discuss the prblem 13. Befre hlding a disciplinary meeting ensure that the emplyee has been ntified f the nature f the prblem and the basis f the allegatins against them. The meeting shuld then be held prmptly whilst allwing the emplyee reasnable time t prepare their case. 14. At the meeting allw the emplyee t set ut their case and answer any allegatins that have been made. Allw the emplyee t be accmpanied at the meeting 15. Wrkers have a statutry right t be accmpanied by a cmpanin where the disciplinary meeting culd result in a frmal warning being issued; r the taking f sme ther disciplinary actin; r the cnfirmatin f a warning r sme ther disciplinary actin (appeal hearings).

9 16. The chsen cmpanin may be a fellw wrker, a lay trade unin fficial, r an fficial emplyed by a trade unin. A lay fficial must have been certified by their unin as being able t accmpany a wrker. 17. T exercise the right t be accmpanied wrkers must first make a reasnable request. Decide n apprpriate actin 18. Fllwing the meeting decide whether r nt disciplinary r any ther actin is justified and infrm the emplyee accrdingly. 19. Where the emplyee is fund guilty f miscnduct r t be perfrming prly they shuld be given a written warning. A further act f miscnduct r failure t imprve perfrmance within a set perid wuld nrmally result in a final written warning. 20. If an emplyee s first miscnduct r unsatisfactry perfrmance is sufficiently serius, it may be apprpriate t mve directly t a final written warning. In small rganisatins this might ccur where the emplyee s actins have had, r are liable t have, a serius r harmful impact n the rganisatin. 21. A first r final written warning shuld set ut the nature f the miscnduct r pr perfrmance, the change in behaviur r imprvement in perfrmance required (with timescale). The emplyee shuld be tld f a specified perid after which the warning will be disregarded. 22. The emplyee shuld be infrmed that a further act f miscnduct, r failure t imprve perfrmance, within the set perid fllwing a final warning, may result in dismissal r sme ther penalty such as demtin r lss f senirity. 23. Sme acts, termed grss miscnduct, are s serius that they may call fr summary dismissal fr a first ffence. But a fair disciplinary prcess, including a right f appeal, shuld always be fllwed, befre deciding whether grss miscnduct has ccurred. 24. Disciplinary rules shuld give examples f acts which the emplyer regards as acts f grss miscnduct. These may vary accrding t the nature f the rganisatin and what it des, but might include things such as theft r fraud, physical vilence r serius insubrdinatin. Prvide emplyees with an pprtunity t appeal 25. Appeals shuld be heard prmptly and ideally at an agreed time and place. 26. Wherever pssible the appeal shuld be dealt with by a manager wh is mre senir than the manager wh cnducted the first hearing. 27. Wrkers have a statutry right t be accmpanied at appeal hearings.

10 28. Emplyees shuld be infrmed in writing f the results f the appeal hearing as sn as pssible. Special cases 29. If it is necessary t discipline a trade unin lay fficial the nrmal disciplinary prcedure shuld be fllwed. Depending n the circumstances, hwever, it is advisable t discuss the matter at an early stage with an fficial emplyed by the unin, after btaining the emplyee s agreement. 30. If an emplyee is charged with, r cnvicted f a criminal ffence this is nt in itself reasn fr disciplinary actin. Cnsideratin needs t be given t the effect f the charge r cnvictin n the emplyee s ability t d their jb.

11 GRIEVANCE Keys t handling grievances in the wrkplace Let the emplyer knw the nature f the grievance 31. This is best dne in writing and t the emplyee s line manager. 32. Where the grievance is against the line manager the emplyee shuld apprach anther manager in the rganisatin if pssible. Hld a meeting with the emplyee t discuss the grievance 33. Arrange fr a frmal meeting t be held prmptly after a grievance is received. 34. Allw the emplyee t explain their grievance and hw they think it shuld be reslved. Allw the emplyee t be accmpanied at the meeting 35. Wrkers have a statutry right t be accmpanied by a cmpanin at a grievance meeting which deals with a cmplaint abut a duty wed by the emplyer t the wrker. S this wuld apply where the cmplaint is, fr example, that the emplyer is nt hnuring the wrker s cntract, r is in breach f legislatin. 36. The chsen cmpanin may be a fellw wrker a lay trade unin fficial r an fficial emplyed by a trade unin. A lay fficial must have been certified by their unin as being able t accmpany a wrker. 37. T exercise the right t be accmpanied a wrker must first make a reasnable request. Decide n apprpriate actin 38. Fllwing the meeting decide n what actin, if any, t take. Decisins shuld be cmmunicated t the emplyee withut undue delay and, where apprpriate, shuld set ut what actin the emplyer intends t take t reslve the grievance. Allw the emplyee t take the grievance further if nt reslved 39. If an emplyee feels that their grievance has nt been satisfactrily dealt with they shuld be allwed t take the matter further n appeal.

12 40. Appeals shuld be heard prmptly and at an agreed time and place which shuld be ntified t the emplyee. 41. Where pssible the appeal shuld be dealt with by a manager wh is mre senir than the manager wh dealt with the first hearing. 42. Wrkers have a statutry right t be accmpanied at any such appeal hearing. Special cases 43. It is gd practice t cnsider dealing separately with issues invlving bullying, harassment r whistleblwing.

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