Draft Code of Practice

Code of Practice on disciplinary and grievance procedures (draft)

Published

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Important: This Code of Practice is in draft form for public consultation.

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Contents

Foreword

The Acas statutory Code of Practice on disciplinary and grievance procedures is set out in paragraphs 1 to 95 below. This Foreword does not form part of the Code.

The Code is issued under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992 and was laid before both Houses of Parliament on [insert date]. It comes into effect by order of the Secretary of State on [insert date] and replaces the Code issued in 2015. 

A failure to follow the Code does not, in itself, make a person or organisation liable to proceedings. However, employment tribunals will take the Code into account when considering relevant cases. 

Tribunals will also be able to adjust any awards made in relevant cases by up to 25 per cent for unreasonable failure to comply with any provision of the Code. This means that if the tribunal finds that an employer has unreasonably failed to follow the guidance set out in the Code they can increase any award they have made by up to 25 per cent. Conversely, if they find an employee has unreasonably failed to follow the guidance set out in the Code they can reduce any award they have made by up to 25 per cent. 

Throughout this Code the word 'must' is used to indicate where something is a legal requirement. The word 'should' is used to indicate a strongly recommended step or expectation. The term ‘good practice’ is used to indicate what Acas considers to be good employment practice.

The Code of Practice

Introduction

1. This Code is designed to help employers, workers and their representatives deal with concerns at work. These include:

  • employers’ concerns about misconduct or poor performance
  • workers’ concerns, problems or complaints that they raise with their employers

2. The Code sets out principles and standards of reasonable behaviour for employers and workers which should apply in most situations.

3. Employment tribunals will take the size and resources of an employer, including those of small businesses, into account when deciding on relevant cases. It may sometimes not be practicable for all employers to take all of the steps set out in this Code.

4. Other legal requirements may need to be applied alongside this Code. This might include, for example, the UK Market Abuse Regulation in the case of senior employees or company directors. In such cases, the guidance in the Code should always be followed to the extent that is reasonably possible.

5. The Code does not apply to redundancy dismissals or the non‑renewal of fixed-term contracts when they expire.

Principles for handling concerns at work

6. Employers and workers should raise and handle concerns fairly and reasonably. There are a number of elements to this (paragraphs 7 to 9).

7. Employers and workers should:

  • speak to each other with an aim to resolve concerns early and prevent unnecessary escalation
  • deal with issues promptly and not unreasonably delay conversations, meetings or decisions

8. Employers should:

  • establish the facts of the situation, inform workers of the basis of their concern and give them an opportunity to set out their understanding before making decisions
  • ensure actions taken to resolve a concern are reasonable in the circumstances
  • allow a worker to appeal against any formal decision

9. When raising a concern, workers should:

  • do so with a manager or someone else in the organisation who may be able to help
  • explain their concern clearly in a way that will enable the employer to understand and resolve it

10. In addition, workers have a statutory right to be accompanied by a companion at a formal disciplinary or grievance meeting. Companions can bring benefits such as helping workers to understand processes and express themselves clearly, which can help employers and workers resolve concerns fairly and effectively. If a worker requests to be accompanied where the statutory right does not apply, it is good practice to consider whether allowing this could help resolve the issue. (See paragraphs 77 to 89).

Policies and training on handling concerns at work

11. Organisations may develop their own policies and procedures for managing conduct and performance. Where they do so, the basic steps and principles of fairness set out in this Code should still be followed.

12. Having clear and specific written policies and procedures promotes fairness, transparency and consistency. Employers should ensure staff can access these and understand how to use them. They should develop policies and procedures with workers and, where appropriate, their representatives.

13. It is good practice to provide training and support to help managers, workers and representatives build the skills and confidence needed to resolve concerns early and effectively.

Avoiding unlawful discrimination

14. Employers must meet their obligations under the Equality Act 2010. This includes making reasonable adjustments for workers with a disability and avoiding other forms of unlawful discrimination. In some circumstances, processes for handling concerns may need to be adapted, for example:

  • ensuring a venue for a meeting is physically accessible
  • providing relevant documents in a format that is accessible to the worker
  • in addition to the statutory right to be accompanied (see paragraphs 77 to 89), allowing the worker to bring a support worker who has knowledge of their disability, or an interpreter if there is a language barrier to full participation in a meeting

15. Workers should discuss with their employer any adjustments or adaptations they believe may be needed. It is good practice to do this as early as possible to allow enough time for the adjustment to be considered and made.

Resolving employer concerns at work informally

16. Concerns about misconduct or unsatisfactory performance are usually best dealt with informally. Many concerns can be raised and resolved effectively in the course of everyday working relationships. Addressing an issue early and informally may lead to a quicker resolution that can be beneficial for everyone involved.

17. The employer should speak with the worker to explain the nature of their concern. They should listen to what the worker has to say and discuss what is needed to resolve it. Depending on the nature of the concern, it could be discussed as part of a routine meeting such as a regular management conversation, or it may be helpful to hold a conversation specifically to discuss it.

18. In organisations with trade union or other worker representatives, it could also be helpful for the employer to discuss a concern informally with a representative at an early stage. They should only do this if the worker agrees. The worker may also find it helpful to talk to a representative or someone else not directly involved. This can help employers and workers gain a different perspective on an issue and consider appropriate options to resolve it.

19. The outcome of an informal approach could be, for example:

  • clarifying or reminding the worker of expected standards of conduct or performance
  • identifying a training need and arranging support to help the worker improve performance
  • identifying and putting in place a reasonable adjustment to support a worker with a disability
  • offering mediation or a facilitated conversation (see paragraphs 90 to 95)
  • deciding that it may be appropriate to start a formal disciplinary procedure, in which case the informal conversation or meeting should be ended

20. If a concern is not fully resolved, it may be helpful to meet again informally to discuss the issue. This can help, for example, to put in place a reasonable adjustment or to review progress of training.

21. An informal conversation should never by itself result in a formal disciplinary warning or other formal disciplinary action. While it may be useful for the employer to confirm in writing what has been discussed, employers should ensure this is not later treated as a formal warning. Any decision about formal disciplinary action should only be taken following a formal disciplinary meeting at which the worker has the right to be accompanied. A worker should be notified in writing in advance of a formal disciplinary meeting and given reasonable time to prepare for it (see paragraphs 31 to 50).

22. There is no statutory right to be accompanied during an informal conversation about a worker’s conduct or performance. This may be allowed under an employer's own procedure or to help avoid unlawful discrimination (see paragraphs 14 to 15 and 77 to 89).

23. An informal approach will not be appropriate in every situation. For example, concerns about gross misconduct or other serious issues that could result in dismissal should be handled using a formal disciplinary procedure.

Formal disciplinary procedures

24. If it is not possible to resolve a concern informally, the employer may consider if it is appropriate to hold a formal disciplinary meeting. The employer should carry out any fact-finding necessary to consider the nature of the issue and appropriate options for resolving it. This should be done without unreasonable delay.

Establish the facts

25. The fact-finding process should be objective, reasonable and proportionate to the nature of the issue. For example, in some cases this may simply involve gathering and reviewing relevant documentation. In other cases, it may require holding an investigatory meeting with the worker or other people involved. If there is an investigatory meeting this should not by itself result in any disciplinary action.

26. In misconduct cases, where possible, different people should carry out the fact-finding and any formal disciplinary meeting which may follow. This helps ensure the process is fair and objective.

27. There is no statutory right for a worker to be accompanied at an investigatory meeting. This may be allowed under an employer's own procedure or to help avoid unlawful discrimination (see paragraphs 14 to 15 and 77 to 89).

Suspensions

28. Suspending a worker during a disciplinary investigation should only be considered if it is necessary to comply with a legal requirement, or if an employer reasonably believes it would protect:

  • the investigation – for example, if there is a reasonable concern about the worker damaging evidence or influencing witnesses
  • the organisation – for example if there is a genuine risk to customers, clients, property or business interests
  • other staff
  • the person under investigation

29. If suspension is considered necessary, it should be as brief as possible and be kept under review.

30. Suspension can have a significant effect on working relationships and the people involved. If suspending someone is reasonable in the circumstances, it is good practice to:

  • communicate the decision to suspend sensitively and in private
  • clearly explain the reason for the suspension and that it is not disciplinary action
  • explain the next steps in the process, who they can contact if they have any concerns, and any support available

Inform the worker of the next step

31. After establishing the facts, the employer should consider the appropriate next step. Depending on the facts, this might be, for example, to take no further action or to proceed to a formal disciplinary meeting. For some issues, it may be appropriate to consider other ways to resolve the concern, for example to offer mediation or a facilitated conversation (see paragraphs 90 to 95).

32. If it is decided a formal disciplinary meeting is needed, the worker should be informed of this in writing. This notification should:

  • contain enough information about the concern and its possible consequences to enable the worker to prepare to respond at the meeting
  • state what steps have already been taken to attempt to resolve the concern informally or the reason why none have been taken
  • give details of where and when the disciplinary meeting will take place
  • inform the worker of their right to be accompanied at the meeting (see paragraphs 77 to 89)

33. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification. Employers and workers should give advance notice if they intend to call relevant witnesses at the meeting.

Hold a formal disciplinary meeting

34. The employer should hold a meeting with the worker to discuss the concern. The meeting should be held without unreasonable delay while allowing the worker reasonable time to prepare. Employers, workers and any companion of a worker should make every effort to attend the meeting (see paragraphs 77 to 89).

35. At the meeting, the employer should explain their concern and go through the evidence gathered. The worker should be:

  • allowed to set out their account of the situation and answer the concerns raised
  • given a reasonable opportunity to ask questions, present evidence and call relevant witnesses
  • given an opportunity to raise points about any information provided by witnesses

36. Where a worker is persistently unable or unwilling to attend a disciplinary meeting without good reason the employer should make a decision based on the available evidence.

Decide on appropriate action

37. After the meeting, the employer should decide what action, if any, is appropriate and inform the worker of their decision in writing.

38. If the meeting confirms there has been misconduct or that the worker is performing unsatisfactorily, the appropriate action will depend on all the facts.

39. In cases of a first instance of misconduct or unsatisfactory performance, it is usual to give the worker a written warning. Further misconduct or failure to improve performance within a set period would normally result in a final written warning.

40. If a worker’s first misconduct or unsatisfactory performance is serious enough, it may be appropriate to move directly to a final written warning. For example, where the worker’s actions have had, or may have, a serious or harmful impact on the organisation or other workers.

41. A first or final written warning should set out the nature of the misconduct or unsatisfactory performance. It should also explain the change in behaviour or improvement in performance required and include a timescale for this. The worker should be told how long the warning will remain current. They should be informed of the potential consequences of further misconduct, or failure to improve performance, within the set period following a final warning. For example, that it may result in dismissal or some other contractual consequence such as demotion or loss of seniority.

42. The disciplinary process might identify a need for training, support, or another approach to resolve the issue. For example, mediation or a facilitated conversation may help where misconduct or unsatisfactory performance is linked to a working relationship issue (see paragraphs 90 to 95). Depending on the circumstances, this could be the sole outcome or provided alongside a warning where appropriate.

43. A decision to dismiss should only be taken by someone who has the authority to do so, for example a manager. The worker should be informed as soon as possible of the reasons for the dismissal, the date their employment contract will end, the appropriate period of notice and their right of appeal.

44. Some behaviours, known as gross misconduct, are so serious or have such serious consequences that they may call for dismissal without notice even though there has been no previous warning for misconduct. A fair disciplinary process should always be followed before deciding to dismiss for gross misconduct.

45. Disciplinary policies and procedures should give examples of what the employer regards as gross misconduct. These may vary according to the nature of the organisation and what it does, but might include things such as theft or fraud, physical violence, gross negligence or serious insubordination.

Provide workers with an opportunity to appeal

46. Where a worker feels that formal disciplinary action taken against them is wrong or unfair they should appeal against the decision if they wish the employer to reconsider it. They should let the employer know the reasons for their appeal in writing.

47. Appeals should be heard without unreasonable delay while allowing the worker reasonable time to prepare. The meeting should be held ideally at an agreed time and place which should be notified to the worker in advance.

48. The appeal should be dealt with impartially. Wherever possible it should be dealt with by a manager who has not previously been involved in the matter.

49. Workers have a statutory right to be accompanied at appeal meetings (see paragraphs 77 to 89).

50. The employer should inform the worker of their decision in writing as soon as possible.

Special cases

51. Where disciplinary action is being considered against a worker who is a trade union representative the normal disciplinary processes should be followed. Depending on the circumstances, however, it is advisable to discuss the matter at an early stage with an official employed by the union, after obtaining the worker’s agreement.

52. If a worker is charged with or convicted of a criminal offence this is not normally in itself reason for disciplinary action. Employers should consider what effect the charge or conviction has on the worker’s suitability to do the job and their relationship with their employer, work colleagues and customers.

Handling worker concerns informally

53. Concerns that workers may wish to raise with their employers are usually best dealt with informally. Many concerns can be raised and resolved effectively in the course of everyday working relationships. Raising an issue early and informally may lead to a quicker resolution beneficial for everyone involved.

54. If a worker has a concern about someone’s behaviour, it is often best to try to speak with them and discuss how it might be resolved. If it is not possible to speak directly with the person, or the worker is not comfortable doing so, they should speak with their line manager or someone else in the organisation who may be able to help.

55. If the worker’s concern is about a legal entitlement or a workplace practice or policy, they should speak with their line manager or another appropriate person such as a human resources (HR) representative.

56. It may also be useful for the worker to discuss the concern with someone not directly involved, such as a colleague, or a trade union or other workplace representative. This can help the worker to gain a different perspective on the issue, articulate their concern clearly, and consider appropriate options for resolving it.

57. When a worker raises a concern informally with their employer, the employer should take it seriously and address it without unreasonable delay. They should listen to what the worker has to say and discuss what is needed to resolve it. If more information is needed, the employer should look further into it. Sometimes a few conversations may be needed to fully understand and resolve an issue.

58. In some cases, it may be an option to consider mediation or a facilitated conversation as a way to resolve the concern (see paragraphs 90 to 95).

59. Following an informal conversation about a worker’s concern, an employer may wish to confirm in writing what has been discussed and any actions agreed. If ongoing steps are needed to resolve the concern, it is good practice to communicate regularly with the worker to provide reassurance that their concern is being taken seriously.

60. There is no statutory right to be accompanied during an informal conversation instigated by the worker. This may be allowed under an employer's own procedure or needed to avoid unlawful discrimination (see paragraphs 14 to 15 and 77 to 89).

61. In some cases, it may not be appropriate for a worker to raise a concern informally. For example, concerns about serious misconduct of a manager or another worker should usually be raised using a formal grievance procedure from the start.

Raising and handling a formal grievance

62. If it is not possible to resolve a grievance informally, a worker should raise their concern formally with their employer. This is known as raising a grievance.

Let the employer know the nature of the concern

63. The worker should raise the grievance without unreasonable delay with a manager who is not the subject of the grievance. This should be done in writing and should set out:

  • the nature of the worker’s concern
  • if possible, how the worker would like the concern to be resolved
  • what steps have already been taken to resolve the concern informally or the reason why none have been taken

64. A short, clear written explanation of the concern will often be enough at this stage. This can help the employer initially consider the grievance and respond to the worker quickly. The employer should take the concern seriously and allow the worker an opportunity to provide more information later if needed (see paragraph 67).

Hold a meeting with the worker to discuss the concern

65. After a grievance is received, employers should arrange a formal meeting without unreasonable delay.

66. Workers have a statutory right to be accompanied at a formal grievance meeting (see paragraphs 77 to 89).

67. Employers, workers and any companion of a worker should make every effort to attend the meeting. Workers should be allowed to explain their concern and how they think it should be resolved. The employer should consider pausing the meeting for any additional fact-finding that may be needed to help them gain a sufficient understanding of the issue.

Decide on appropriate action

68. Following the meeting the employer should decide on what action, if any, to take. They should inform the worker of the decision in writing without unreasonable delay. Where appropriate, this should set out what action the employer intends to take to resolve the worker’s concern. The employer should inform the worker they can appeal if they are not satisfied with the decision.

69. In some cases, it may be appropriate to offer mediation or a facilitated conversation as a way to resolve the concern (see paragraphs 90 to 95).

Allow the worker to take the grievance further if not resolved

70. If the worker feels that their concern has not been resolved satisfactorily, they should appeal the employer’s decision if they wish the employer to reconsider it. They should let their employer know the reasons for their appeal without unreasonable delay and in writing.

71. Appeals should be heard without unreasonable delay while allowing the worker reasonable time to prepare. The meeting should be held ideally at an agreed time and place which should be notified to the worker in advance.

72. The appeal should be dealt with impartially. Wherever possible it should be dealt with by a manager who has not previously been involved in the matter.

73. Workers have a statutory right to be accompanied at appeal meetings (see paragraphs 77 to 89).

74. The employer should inform the worker of their decision in writing without unreasonable delay.

Overlapping grievance and disciplinary cases

75. Where a worker raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently.

Collective grievances

76. This Code does not apply to grievances raised on behalf of two or more workers by a representative of a recognised trade union or other appropriate workplace representative. These grievances should be handled in accordance with the organisation's collective grievance process.

Allowing a worker to be accompanied

77. Workers have a statutory right to be accompanied by a companion at a formal disciplinary or grievance meeting (see paragraphs 78 to 79). Companions can help workers to understand processes and express themselves clearly. This can be beneficial in helping employers and workers resolve concerns fairly and effectively.

78. A formal disciplinary meeting is one that could result in:

  • a formal warning being issued
  • the taking of some other disciplinary action
  • the confirmation of a warning or some other disciplinary action (appeal meetings)

79. A formal grievance meeting is one which:

  • a worker is required or invited to attend by their employer
  • deals with a complaint about a duty owed by the employer to the worker. This would apply where the complaint is, for example, that the employer is not honouring the worker's contract, or is in breach of legislation

80. There is no statutory right to be accompanied at:

  • an informal conversation about a disciplinary concern or a disciplinary investigation meeting (as these should not result in any formal disciplinary action)
  • an informal conversation instigated by the worker to discuss a concern they have

This may be allowed under an employer's own procedure or to help avoid unlawful discrimination (see paragraphs 14 to 15).

81. If a worker requests to be accompanied to a meeting where the statutory right does not apply, it is good practice to consider this request. While most concerns are best handled through informal conversations on a one-to-one basis, an employer may wish to consider whether allowing the worker to be accompanied could help resolve the issue.

82. The statutory right is to be accompanied by a fellow worker, a trade union representative, or an official employed by a trade union. A trade union representative who is not an employed official must have been certified by their union as being competent to accompany a worker.

83. Employers must agree to a worker's request to be accompanied by any companion from one of these categories at a formal disciplinary or grievance meeting. Workers may change their choice of companion if they wish. As a matter of good practice, in making their choice workers should consider the practicalities of the arrangements. For instance, for a meeting that is to be held in-person, a worker may choose to be accompanied by a companion who is suitable, willing and available on site rather than someone from a geographically remote location.

84. To exercise the statutory right to be accompanied workers must make a reasonable request. What is reasonable will depend on the circumstances of each individual case. A request does not have to be in writing or within a certain time frame, but a worker should provide enough time for the employer to deal with the companion's attendance at the meeting. Workers should also consider how to make their request clear, for instance by letting the employer know in advance the companion’s name if possible, and whether they are a fellow worker or trade union official or representative.

85. If a worker's chosen companion will not be available at the time proposed for the meeting, then it should be postponed. If the worker proposes an alternative time that is reasonable and not more than five working days after the date originally proposed, the employer must postpone the meeting to that time.

86. It may be reasonable to allow more than five working days for a re-arranged meeting, particularly in cases that might result in dismissal. An employer must always act reasonably in the circumstances to avoid dismissing someone unfairly. Where a worker requests to postpone a meeting for more than five working days because a companion is not available, it may be fair to allow the postponement if it does not cause unreasonable delay.

87. The companion must be allowed to address the meeting to:

  • put and sum up the worker's case
  • respond on behalf of the worker to any views expressed at the meeting
  • confer with the worker during the meeting

88. An employer does not have to allow a companion to:

  • answer questions on the worker's behalf
  • address the meeting if the worker does not wish it
  • prevent the employer from explaining their case, or prevent any other person at the meeting from contributing to it

89. In considering requests relating to accompaniment, employers must meet their obligations under the Equality Act 2010 (see paragraphs 14 to 15).

Mediation and facilitated conversations

90. In some situations, it may be helpful to consider using mediation or a facilitated conversation to resolve a concern. This involves appointing an independent third party to help those involved resolve it.

91. The third party should be an accredited mediator or trained facilitator who is impartial and does not take sides. They could be someone external or a trained, independent individual within the organisation.

92. Mediation and facilitated conversations can be suggested by anyone at any stage in a process or afterwards. They are voluntary and confidential. Options for resolution proposed in these processes do not need to be accepted.

93. If it is agreed to use mediation or a facilitated conversation during a formal disciplinary or grievance procedure, the formal procedure should be paused.

94. Mediation and facilitated conversations can be especially beneficial in resolving problems associated with working relationships. They are not suitable for every situation, for example where:

  • a factual decision is needed about statutory rights
  • a resolution to the issue needs someone else to make a decision
  • there is a substantial power imbalance that cannot be managed safely by the process, such as intimidation, coercion or abuse
  • an individual cannot engage voluntarily or meaningfully in the process, even with reasonable support or adjustments, due to a mental health difficulty, a learning difficulty or a lack of mental capacity

95. These processes may not be available in every organisation, but it is good practice to offer them in appropriate cases where possible.