In February 2019, Acas made changes to its guide on discipline and grievances, which complements the Acas code of practice on disciplinary and grievance procedures. The guide provides detailed advice on dealing with disciplinary and grievance situations that employers commonly face.
Tribunals are not required to have regard to the Acas guide when considering relevant cases. The guide is important because tribunals are still likely to consider it when interpreting the Acas code. The key updates are outlined below.
Companions at Hearings
Acas has updated its previous guidance on postponing a disciplinary hearing for five days when a worker’s chosen companion is not available. Where there is a request to postpone a hearing for more than five days because a trade union representative or other companion is not available, it may be fair to allow the postponement if it does not cause unreasonable delay.
As an employer you should consider the facts and decide what is fair and reasonable in the circumstances.
The updated Acas guide makes it clear that, in these circumstances, you may have to delay the disciplinary hearing for more than five days if this does not cause ‘unreasonable delay’.
Importantly, the guidance also now recommends you employers take the same approach to grievance meetings that are connected to a potential dismissal.
Acas has expanded the guide’s section on suspensions. The guidance now places a greater emphasis on taking into account the impact on your employee.
Suspension can leave individuals feeling prejudged, demotivated and devalued. It should therefore only be used after very careful consideration. It should always be made clear that suspension is not an assumption of guilt and is not considered a disciplinary sanction.
Acas also highlights that:
- employees should always receive their full pay and benefits during a period of suspension unless there is a clear contractual right for an employer to suspend without pay;
- suspensions should be kept as brief as possible and reviewed regularly; and
- the suspended employee should be kept informed of the progress of the investigation.
Overall, Acas points out that suspensions should be used only in exceptional circumstances and most disciplinary situations do not require a suspension.
You must not assume that you are automatically entitled to suspend an employee whatever the circumstances, or just because you may have a contractual power to do so in the employee’s contract of employment.
Before making a decision to suspend, you should speak with your employee and consider all the relevant circumstances. For example, are there any reasonable alternatives to suspension, such as transferring an employee to another part of the business?
Stress and Grievances
The updated Acas guide makes clear how stressful a grievance process can be for everyone involved. This could be the complainant or someone else involved, such as an employee who is the subject of a complaint.
In some cases, it might be appropriate for you, with the agreement and involvement of the individual, to seek professional medical help or guidance as to how the grievance process can proceed fairly. If there are clear and repeated signs of distress, you should consider signposting the individual to an employee assistance programme, where one is available, or consider suggesting that the individual seeks advice from a GP.
According to Acas, there are various steps that you can take to help individuals whose mental health is affected, including making adjustments to the grievance process. If someone discloses a mental health issue that could be a disability, you should make reasonable adjustments to the grievance procedure.
Outcome of Grievances
Acas’s guidance now highlights good practice around keeping individuals other than the complainant in the loop. Acas gives the example of a grievance being about a fellow employee.
According to Acas, these individuals “should be informed of any aspect of the decision that affects them and the reasons for it.” The guide also recommends that you tell the complainant who else will be told about the grievance outcome.
Bear in mind that actions taken to resolve a grievance may have an impact on other individuals. While confidentiality is of prime importance in handling any grievance, in some circumstances there may be other individuals who may need to know the outcome, or certain aspects of the outcome that will impact on them.
As the employer you should make sure that someone who has had allegations made against them in the course of a grievance process is kept up to date.
It is good practice for employers to do this not only at the start of the process, but at the end as well. For example, it may be that an individual has been exonerated after a complaint in which they were implicated.
If there is a case to answer, disciplinary action against the individual may follow.
There may be circumstances in which the wider workforce needs to be updated, for example if there has been a change of policy across the organisation after a grievance. However, as Acas says, confidentiality is still a prime consideration in handling any grievance.
Before you take any action regarding disciplines or grievance, it is best to take professional advice. Please call me on 0118 940 3032 or click here to email me and we can discuss your situation in confidence.