6.13 Disciplinary and grievance procedures
Although employers and employees are no longer bound by statutory disciplinary, dismissal and grievance procedures, the law has been replaced by a Code of Practice on Disciplinary and Grievance Procedures, published by the conciliation service ACAS. While this is not legally binding, it should be followed in relation to dismissals for misconduct and poor performance and where an employee raises a grievance. Failure to follow the Code may affect the amount of compensation awarded, with an increase or reduction of up to 25% depending on whether the failure to follow it lies with the employer or employee.
The Code and its accompanying guidance notes are extremely helpful but not completely comprehensive, so employers will often include a reference to their own more detailed procedures in the contract (although the procedures themselves are likely to be non-contractual and set out in a handbook or manual. This ensures that any minor deviation from procedure will not give rise to a claim of breach of contract or constructive unfair dismissal).
At a disciplinary hearing (i.e. one which could result in action being taken by the employer, but not investigations) and during grievance hearings, employees have the right to be accompanied. A companion may be either a fellow worker or certified trade union official (even if the employee is not a union member and/or the union is not recognised by the employer). If the employer permits it, other companions may be used, such as a family member, and (particularly where the employee’s professional career is at stake, in the public sector and where the particular disciplinary rules provide for it), it may be appropriate to allow legal representation.