Conduct unbecoming?

The new code on disciplinary and grievance procedures comes into force in April. It aims to give guidance on statutory requirements.

by Stuart Jones

9 April 2009

Employers are keen to get to grips with the new code given that a tribunal is able to adjust certain awards by up to 25 per cent for unreasonable failure to comply.

The most important change for employers is that, unlike in the Statutory Disciplinary and Dismissal Procedures (SDDPs), breach of the Acas code does not render a dismissal automatically unfair.

Also gone are the automatic Basic Award (minimum of four weeks), the automatic uplift on any award of at least 10 per cent where the dismissal is automatically unfair, and the automatic uplift on awards for failing to follow the Statutory Grievance Procedures (SGPs).

The code applies only to misconduct dismissals as it refers solely to disciplinary matters. In deciding whether such a dismissal is procedurally or substantially unfair a tribunal will take into account whether the employer has complied. Your disciplinary and grievance procedures must comply with the standard SDDPs and SGPs to do so. There are no modified procedures. 

Essentially, both disciplinary and grievances procedures should be dealt with promptly. There should be a face-to-face meeting and both parties should be clear about what will be discussed. Employees should have the right to be accompanied by a work colleague or trade union representative and the chance to put their case at the meeting. There should be a right of appeal for both disciplinary and grievance decisions. Different people should carry out the investigation and disciplinary hearings.

The code assists where grievances and disciplinary matters become intertwined. Where this happens it may be appropriate to deal with both issues concurrently.
If disciplinary action is to be taken against a trade union representative the code states that it should be discussed at an early stage with an official employed by the union. Ex-employees with a grievance should be dealt with in the same way as current employees.

Flexible working

From 6 April the right to request flexible working is being extended from parents of children aged six or under to parents of children aged 16 or under.

The original restriction did not make logical sense to many - parents still need to make working arrangements to look after children once they reach six years old.
The Flexible Working Regulations are a formal vehicle to allow employees to apply for flexible working arrangements; they do not provide a right for employees to obtain such arrangements. This is often misunderstood by employees. As the regulations will apply to a much wider proportion of the workforce it is worth considering an internal announcement about the extension of the right - at the same time reinforcing this point. That is not to say that employers should not grant such requests - it is common knowledge that flexible working arrangements can reap benefits for both employers and employees.

When dealing with a request, employers should consider statutory grounds for refusal. Detrimental impact on customers, colleagues and the business are all sound reasons. 

Employers should also be wary of paying lip service to a request. While there is no right for the employee to seek redress in a tribunal for the refusal of the request itself, they could bring claims of constructive dismissal if the employer has acted in bad faith, or of indirect sex discrimination if the employee is female.

Points-based immigration

Under new points-based immigration systems (see box), employers will need a sponsor licence to bring in temporary workers from outside the EEA. Since 1 April, the Home Office has aimed to process both sponsor licence applications and migrants' applications to enter the UK in a maximum of four weeks.From the end of March, students applying to come to the UK will be assessed under Tier 5 (Youth mobility and temporary workers), of the new points system. Adult students will only be allowed to study in the UK if they have a proven track record of studying. All students must be enrolled on a course at or above Level 3 on the National Qualification Framework (NQF) or a course at Level A2 of the European Common Framework of Reference for Language if they are learning English.

This is part of the simplification project by the Home Office to assist both migrant workers and their would-be employers. The latter may have a pressing need for migrant workers but face severe penalties if they do not have appropriate licences. This can be frustrating for would-be employers; the new service standards seek to ease this frustration.

However, this is subject to the employer being able to host a visit from the Home Office, if necessary, within one week of a request for it, so employers will need to co-operate with the Home Office for them to achieve the service standards.

Stuart Jones is an employment partner at Weightmans

[email protected]

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The points-based immigration system

Last year saw a drastic shake-up of the way we bring in workers from outside the UK and, in particular, the introduction of the new points-based immigration system in the UK. Migrants now fall into five tiers:

1 - Highly skilled workers
2 - Skilled workers with a job offer
3 - Low skilled workers filling a specific temporary labour shortage
4 - Students
5 - Youth mobility and temporary workers

Tiers 1, 2 and 5 were introduced in 2008 and are now in full operation.