Which disciplinary and dismissal procedures must I follow?

Contents

1. Introduction 2. The statutory dismissal and disciplinary procedures (Northern Ireland only) 2.1. The standard SDDP 2.2. The modified SDDP 2.3. Sanction for failing to comply with SDDP 3. Dismissal and disciplinary procedures (England, Wales and Scotland) 3.1. Fair and reasonable procedure 3.2. The changing role of Acas after 6 April 2009 3.3. Do I need to change my procedures? 3.4. Contractual procedures

With effect from 6 April 2009, the statutory dismissal and disciplinary procedures (SDDPs) were repealed in England, Scotland and Wales (but not in Northern Ireland). Before this date, there was a legal requirement for employers to comply with minimum procedural requirements. This means that, unless you are in Northern Ireland or you are subject to certain transitional provisions, you will no longer have to follow the SDDPs when you take disciplinary action against an employee.

There are two statutory dismissal and disciplinary procedures (SDDPs) - standard and modified. In most cases, where these procedures still apply, you should follow the standard one. In Northern Ireland, you can obtain the current disciplinary procedures from the Labour Relations Agency (NI) website , which has a code of practice for you to follow based on the statutory procedures.

The standard SDDP has three stages:

• Inform the employee in writing why you are contemplating dismissing or taking disciplinary action against them and invite them to a meeting, giving them sufficient time to prepare. Provide copies to the employee and/or their companion of any evidence that may be used at that meeting.
• Hold the meeting with the employee. Inform the employee of any decision made after the meeting and notify them of their right to appeal.
• If the employee wishes to appeal against the disciplinary action that has been decided upon, you must invite the employee to a further meeting.

The employee has the right to be accompanied at both meetings by a colleague or union representative.

The modified SDDP only applies in very rare cases of gross misconduct where you feel you are justified in dismissing immediately without notice or pay in lieu of notice.

The procedure has two stages:

• Written statement - the employer must give the employee a written statement setting out the conduct that has resulted in the dismissal and informing the employee of the right to appeal against the decision to dismiss.
• Appeal meeting - if the employee wishes to appeal they must inform the employer. A meeting must be held. The employer must inform the employee of their decision following the meeting.

The employee has the right to be accompanied at the meeting by a colleague or union representative.

If you fail to follow the appropriate SDDP and the employee subsequently brings a claim before an employment tribunal and is successful, their compensation can be increased by up to 50 per cent.

When you are dealing with a disciplinary issue or dismissal from 6 April 2009 you will still have to follow a fair and reasonable procedure.

You will be expected to follow the good-practice advice set out in the revised Acas code of practice on disciplinary and grievance procedures. If you unreasonably fail to do so and the issue ends up at an employment tribunal, the tribunal could increase the employee's compensation by up to 25 per cent.

You can read the Acas discipline and grievance code of practice and the guidance that accompanies the code on the Acas website .

As well as having a revised code of practice, Acas will provide an enhanced helpline service, with improved accessibility and longer opening hours (08.00-20.00 Monday to Friday and 09.00-13.00 on Saturday).

Acas will also be providing a free early conciliation service (known as pre-claim conciliation) for those workplace problems that are likely to become employment tribunal claims.

You can read about the changing role of Acas after 6 April 2009 on the Acas (new role) website .

If you already have disciplinary and dismissal procedures which comply with the statutory requirements then there is no need to update your procedures. The ACAS code largely follows the statutory procedure, although there is a decreased emphasis on time limits and an increased emphasis on trying to settle disputes informally.

Note, however, that in gross misconduct cases, the Acas Code of Practice indicates that a fair disciplinary procedure should always be followed before taking any decision to dismiss without notice. Continued use of the modified statutory procedure is, therefore, not recommended.

If you have a contractual procedure that provides rights above and beyond a fair and reasonable procedure as advised by Acas, you must follow it in its entirety. Where no such contractual procedures exist, you must follow a fair and reasonable procedure as set out in the Acas Code of Practice.