The Acas Code: Disciplinary procedures 



Here are the key points in the Acas Code relating to disciplinary hearings:


• disciplinary rules should be in writing;


• disciplinary rules must be clear and specific;


• issues must be dealt with promptly and without unreasonable delay;


• employers must carry out all necessary investigations to establish the facts;


• investigations should be carried out before memories fade;


• in misconduct cases, different people should conduct the investigation and disciplinary hearing;


• any suspension should be with pay and be as brief as possible;


• employers must act consistently;


• employees must be informed of the basis of the problem and given their chance to put their side of the story before decisions are taken;


• employees should get enough advance notice to have time to prepare and to discuss issues with their rep;


• employees should get a reasonable opportunity to ask questions, present evidence and call witnesses, and to raise points about witness evidence. The employer should confirm in advance the names of any witness it intends to call;


• employees should be sent copies of all material, including witness statements, relied on by the employer, normally with the notification of the hearing;


• there is a statutory right to be accompanied, which should be explained;


• there must be a right of appeal, which must be properly explained.


The Acas Code applies to all internal procedures that could result in a disciplinary outcome, for example lost pay, any formal warning or a disciplinary dismissal.


The Acas Code does not apply to standard redundancy dismissals, or to the non-renewal of fixed-term contracts. But the Code does apply to grievances over the way in which a redundancy has been carried out, for example, allegations of discrimination or trade union victimisation during selection for redundancy.



The Acas Code does not apply to dismissals for “some other substantial reason” – see page 366 (Phoenix House v Stockman [2016] UKEAT/0264/15/DM).


The Acas Code does not apply to capability dismissals that relate only to the question whether an employee is too sick or injured to be able to do their job (Holmes v Qinetiq Limited [2016] UKEAT/0206/15/BA). The Acas Code does apply if there are allegations of culpable behaviour linked to sickness absence, for example that sickness is not genuine, or that an employee is fraudulently claiming sick pay.


The Acas Code does apply to capability dismissals involving allegations of poor performance – where an employee is accused of failing to meet minimum standards or expectations set by an employer. This is a “disciplinary situation”, and is therefore covered by the Code (Qinetiq, above). The Code applies to all cases where an employee’s alleged actions or failures involve conduct or performance that requires “correction or punishment”.


Many employers, especially in the public sector, have more comprehensive procedures that exceed the basic requirements of the Acas Code. An employer’s failure to follow a more demanding internal procedure is likely to make a dismissal unfair. In particular, where an internal procedure has more stages of appeal, a failure to follow all the stages can make a dismissal unfair (Stoker v Lancashire County Council [1992] IRLR 75). 



The employer must not breach the duty of trust and confidence when working through a disciplinary procedure (Stevens v University of Birmingham [2015] EWHC 2300). 



In some circumstances, an employee may be able to get an injunction to require an employer to follow a contractual disciplinary procedure (West London Mental Health NHS Trust v Chhabra [2013] UKSC 80). 



It is an implied term of every employment contract that an investigator’s report in a disciplinary investigation will be their own work (Chhabra v West London Mental Health NHS Trust [2014] ICR 194) and that any dismissal decision will be taken by the manager appointed to take charge of the decision, without lobbying or interference “behind-the-scenes”, for example by HR or by senior managers (Dronsfield v University of Reading [2016] UKEAT/0200/15/JOJ). Any HR involvement should be limited to providing advice and guidance on process and procedures and not, for example, to making deletions or changes to the content of the report. The employer should tell the employee about any external representations that go beyond legal advice or advice on process and procedure (Ramphal v Department for Transport [2015] UKEAT/0352/14/DA). 



www.acas.org.uk/media/pdf/f/m/Acas-Code-of-Practice-1-on-disciplinary-and-grievance-procedures.pdf

For more information, see the LRD booklet Disciplinary and grievance procedures — a practical guide for union reps, 2015
 (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1790)