Acas Code of Practice

Overview of the ACAS Code of Practice

The Advisory, Conciliation and Arbitration Service (ACAS) developed the ACAS Codes of Practice, which were then ratified by Parliament. Employers, employees, and their representatives can resolve disciplinary and grievance matters at the workplace with the use of the ACAS Code of Practice.

It should be noted that when dealing with discipline or grievance issues, all employers must follow the rules provided in the ACAS guidelines. It demands that employers adhere to a minimum standard when resolving disciplinary or grievance matters.

The ACAS Code of Practice individually sets out fair behavioural guidelines for employers and their employees. It covers this in five key areas of employment practice:

• Disclosure of information to trade unions.
• Discipline and grievance.
• Settlement agreements.
• Time off for trade unions.
• Request to work flexibly.

Every workplace has employment law-related issues. When employment concerns are handled properly when they emerge, tribunal claims are less likely to occur and a positive, productive work environment is promoted.

However, if you need more clarification on areas of employment practice that the ACAS Code of Practice covers, you can reach out to our lawyers at IAS by calling us on +44 (0)333 414 9244 or contact us online.

What Are the Basic Principles of the ACAS Code of Practice?

Internal Resolution

ACAS encourages both employers and employees to make an effort to settle any grievance or disciplinary issues in the workplace.

Communication

Sometimes, all that is needed to resolve a problem is a decent, open, honest dialogue in which both parties listen.  It is surprisingly easy to resolve a problem or misunderstanding by speaking slowly and sensibly before things get worse.

Mediation

Sometimes, things do go beyond communication between the employer and the employee. This is when mediation becomes essential. Mediation in this situation is the process whereby a third-party mediates a conflict between the employer and employee in order to help them resolve the conflict.

So, a mediator could be an individual at your workplace who is not directly involved in the issue. However, external mediators can also be used to settle conflicts.

Timescales

The ACAS Code of Practice requires quick reasonable resolution of concerns by both employers and employees.

This covers postponing meetings, making decisions, and confirming those decisions (such as the results). It should be noted that this pertains to both employers and employees.

Being Accompanied

Employers should always let employees be accompanied to any formal disciplinary meeting or grievance meeting as it is their statutory right.

Consistency

The ACAS requires consistent action from employers and employees. This means that standards, behaviours, expectations, rules, etc are applied in a consistent manner. For instance, where employees are disciplined differently for the same issue.

When expectations for employees are spelt out in plain language for everyone to comprehend, such as in a handbook, consistency is easy to follow. An organization should make it plain in its handbook (or policy) that certain behaviours, such as lateness or possibly misusing company technology, will not be tolerated and will result in disciplinary action. By doing so, they have effectively communicated to staff what is expected of them, and they must now act in a consistent manner whenever this expectation is violated.

Investigation

It is required of the employers to carry out an investigation to establish facts or evidence of the situation. Getting the evidence could be done by speaking to witnesses or CCTV footage. It should be noted that the main aim of carrying out the investigation is to establish the evidence and not to prove or validate something.

Response

Employees should always be given the chance to respond to or present their cases before a judgement is made by the employer. The employees can only respond or present their case only if they’re made aware of the problem or issue in question.

Appeals

ACAS expects that employers will provide workers with the chance to challenge any official decisions made. Even though each of these key principles is straightforward, it’s astonishing how many employers do it wrong.

ACAS Code of Practice: Discipline and Grievance

Overview

Employers and employees must adhere to the guidelines set forth in the ACAS Code of Practice on Discipline and Grievances when resolving issues in the workplace.

In most cases, a discipline or grievance case is resolved internally. But when its resolution fails, then the employer should consider involving an independent third-party. If not, an employee may be able to file a formal tribunal complaint against the employer.

Then, the tribunal must confirm that both the employer and the employee acted in line with the Code of Practice during the ACAS guideline investigations and use it as a clear guide for what constitutes best practice.

Disciplinary Procedures

Disciplinary process examines how an employer responds to issues with an employee’s behaviour or performance that don’t meet the standards expected. The ACAS Code of Practice on Disciplinary and Grievance Procedures bears the following disciplinary procedures:

• Let the employee know of the issue and invite them to a disciplinary hearing.
• Conduct the hearing.
• Let the employee be accompanied for the disciplinary meeting (statutory right).
• Decide on the right action to take.
• Let the employee know the decision.
• Allow the right of appeal.

Grievance Procedures

The grievance process examines the issues, problems or complaints employees may have with their employers. The ACAS guidelines on Disciplinary and Grievance Procedures bears the following grievance process:

• Conduct a grievance hearing to talk about the complaint.
• Let the employee be accompanied (statutory right).
• Decide the right action to take.
• Let the employee know the decision.
• Allow the right of appeal.

Key Elements for Employers on the ACAS Code of Practice: Discipline and Grievance

• Before considering taking formal action, both employers and employees should try to address issues amicably.
• The ACAS code of practice must be taken into account by employment tribunals when arbitrating disciplinary and grievance matters.
• Any financial awards may be reduced by up to 25% by employment tribunals if an employer or employee fails to comply with a code of practice provision and is unable to provide a valid justification.
• Non-renewals of fixed-term contracts and dismissals due to redundancy are not covered by the ACAS code of practice on discipline and grievance.
• Determination of the facts of any matter, employers must conduct thorough and impartial investigations.
• Issues should be brought up and resolved by both employers and employees as soon as possible.
• Before any choices are made, employees must be given the chance to present their arguments. They should also have the option to challenge any official judgements.
• Employees should be permitted to be accompanied during official meetings.

ACAS Code of Practice: Disclosure of Information to Trade Unions

Overview

The Disclosure of Information to Trade Unions is a section of the ACAS Code of Practice that advises about the information that employers may disclose to trade unions in the interest of good industrial relations practice. This involves employers in both the public and private sectors as it protects trade unions from unfair practices that could prevent them from gaining improved working conditions for their members.

Collective bargaining among employers’ associations and trade unions is excluded from it. If you breach the Disclosure of Information to Trade Unions guidelines, it doesn’t trigger legal action. Nevertheless, you need to follow the guidelines in the ACAS Code of Practice.

The Central Arbitration Committee will utilise the rules outlined in the code of practice as a guide during any formal proceedings to decide whether an organisation treated a trade union fairly.

Although it is not required by law, employers that fail to disclose information may face consequences if the ACAS code of practice shows that doing so would have been the fairest and most suitable course of action.

Although it is not required by law, employers that fail to disclose information may face consequences if the ACAS code of practice shows that doing so would have been the fairest and most suitable course of action.

What Information Are Employees Not Required to Disclose?

Employees are not allowed to disclose the following information that:

• Is against the interests of national security.
• Would go against a prohibition set by or under an enactment.
• Was obtained by an employer as a result of another person’s confidence being placed in him. Or was given to an employer in confidence, relates to an individual unless he has given his consent to its disclosure.
• Would harm the undertaking (or national interest with regard to Crown employment) significantly for reasons other than how it affects collective bargaining. Or was acquired with the intent to be used in any legal actions.

Key Elements for Employers on the ACAS Code of Practice: Disclosure of Information to Trade Unions

• Relevant data must pertain to the employer’s operations and be in the employer’s possession.
• Organisations in the public and private sectors are subject to this code.
• If trade unions believe an employer fails to provide essential information, they may file a formal complaint with the Central Arbitration Committee.
• ACAS Code of Practice guidelines are considered by the Central Arbitration Committee during any relevant proceedings.
• The Central Arbitration Committee may award money to the trade union if a complaint is upheld and the employer doesn’t provide the requested information within a reasonable amount of time.

ACAS Code of Practice: Time Off for Trade Union Duties and Activities

Overview

The relationship between employers and trade unions is what this section of the ACAS Code of Practice strives to strengthen. It advises trade union representatives and members who wish to do jobs, conduct training, or participate in union activities on how to negotiate paid and unpaid time off.

The law highlights that it is the joint responsibility of employers and trade unions to negotiate specific, favourable agreements that specify how time off for union-related activities and tasks can work.

ACAS acknowledges that various provisions should be established for time off for:

• Trade union duties include tasks relating to collective bargaining and accompanying union members to official meetings.
• Trade union representatives training.
• Activities of trade unions such as voting in union elections and attending meetings.

Key Elements for Employers on the ACAS Code of Practice: Time Off for Trade Union Duties and Activities

• Employers must grant reasonable time off to trade union members and representatives so they can take part in union activities or perform their tasks.
• Employers must compensate union representatives for the time they would have otherwise spent at work if they are given time off for union duties. Employers must pay an average hourly rate in cases when remuneration varies depending on the amount of work accomplished.
• Employers are not mandated to compensate union members for the time they would have spent at work if they are given time off to participate in union-related activities. They might, however, decide to offer payment.
• Employers and trade unions must decide what qualifies as “reasonable” time off. The needs of the employee, the union and the organisation’s operating needs must be balanced.

ACAS Code of Practice: Settlement Agreements

Overview

This section of the ACAS Code of Practice covers the settlement of significant complaints, disciplinary matters, and workplace grievances. These agreements are legally enforceable and, if both parties agree to them, will forego the individual’s right to pursue the matter at hand in court or before an employment tribunal.

In exchange for the employee withdrawing the action, settlement agreements typically call for the employer to terminate the employee’s contract and pay the employee some sort of compensation.

You are not required to review or accept any settlement proposal made by your employer or employee, and you are not required to agree to the initial terms. Even when all parties are open to the notion of a settlement agreement, it frequently takes numerous rounds of discussion to arrive at workable terms.

What Are the Legally-Binding Settlement Agreement Requirements?

The criteria a settlement agreement should meet include the following:

• The agreement must be written
• It must specify which particular claims the employee will be barred from filing and cannot assert that the settlement is in “full and final settlement of all claims.”
• The employee must seek legal counsel from a qualified independent expert who is appropriately insured to protect them, such as a lawyer, certified trade union representative, or certified advice centre employee.
• The agreement must contain all of the independent adviser’s information.
• It must state that all pertinent statutory requirements governing the settlement agreement have been met.
• The contract should specify the employee’s termination date, salary amount, and payment schedule.

Discussions Without Prejudice

Discussions held to reach a settlement agreement in connection with an ongoing employment dispute are normally and legally permitted to be done “without prejudice.” Accordingly, statements made in a gathering or discussion that is held “without prejudice” cannot be utilised as evidence in a court or tribunal.

However, the “without prejudice” rule is inapplicable if there isn’t a current disagreement between the parties. Therefore, Section 111A of the Employment Rights Act (ERA, 1996) was established to provide for more freedom in the use of private conversations as a means of ending the working relationship.

In accordance with the “without prejudice” principle, the parties may offer and discuss a settlement agreement even if there isn’t an employment dispute, with the understanding that their conversations can’t be brought up in any subsequent unfair dismissal claims.

Key Elements for Employers on the ACAS Code of Practice: Settlement Agreements

• Settlement agreements are not compulsory. Parties are not obligated by law to entertain or concur with them.
• Employees must have sought guidance from a designated independent advisor in order for a settlement agreement to be deemed genuine.
• Settlement agreements cannot become legally binding except when submitted in writing and signed by both parties.
• Common law’s “without prejudice” principle states that even in good faith, prospective settlement agreements cannot be admitted into evidence at an employment tribunal. However, this does not apply in situations when one or more parties have displayed “improper behaviour,” such as unwarranted influence or blackmail.

ACAS Code of Practice: Handling Requests to Work Flexibly

Overview

The handling of requests for flexible work arrangements is covered in this section for both employers and employees. After 26 weeks of employment, every employee has the legal right to ask for flexible working hours.

However, they are only permitted to make a request once every 12 months. Employees should adhere to the guidelines listed in the code when filing a request for flexible scheduling, which include:

• Submitting the request in writing.
• Showing that they are submitting a statutory request for flexible work.
• Describing the planned change to the workday and when they want it to take effect.
• Recognizing any negative effects this change may have on the employer and offering practical methods to address those issues.

Key Elements for Employers on the ACAS Code of Practice: Settlement Agreements

It is not compulsory for employers to grant employees requests for flexible working hours. However, they can handle the request by complying with the ACAS guidelines, which include:

• Check possible employee benefits against any negative effects on the organisation.
• Meet with the employee for a discussion if the request can’t be granted immediately.
• Schedule a meeting with the worker as soon as you receive their written request.
• Allow the employee to be accompanied throughout this conversation and inform them of this prior to the meeting.
• Talk with the employee about the request to have a better understanding of the adjustments being asked and how they would affect the employee and the business
• Consider the request and balance the advantages of the suggested modifications against any probable business consequences of implementing them.
• Inform employees in writing of the decision on their request as quickly as possible.
• Consider the best time to make changes if the application is approved as-is or with amendments.
• Grant the employee the opportunity to appeal if their request is turned down.
• Denial of a request can only occur based on one of the eight legitimate business grounds.
• Ensure that, absent a mutually agreed-upon extension, all requests and any appeals are evaluated and decided within the three-month decision timeframe.

Consequences of Breaching ACAS Codes of Practice

The ACAS Code of Practice is not legally binding because it is not mandatory by law (it is just guidelines). Besides that, if an employer fails to obey the code of practice, it doesn’t make the employer liable for proceedings.

However, the employment tribunals can analyse the conduct of such employers or employees to see how well they have adhered to the Code. After that, the tribunals can now make a decision with their findings and know where to penalise the employer and reward the employee or vice versa.

For example, if the tribunals find out that an employer had defaulted on the provisions of the code then the employee compensation might get up to 25%. Similarly, if they see that an employee had defaulted on what’s provided in the code then the reduction of his or her compensation might be up to 25%.

Therefore, it is encouraged that organisations adopt the codes as the foundation for uniform and lawful workplace policies in order to foster good employee relations.

ACAS Code of Practice: Pitfalls to Avoid

Introduction

There are some errors employers make in dealing with issues at the workplace that are guided by the ACAS code. They include:

Right to Be Accompanied

Although this is a statutory entitlement, the ACAS Code of Practice outlines the employer’s obligation to let employees be accompanied to formal hearings. Similarly, employers should help remind employees of their rights and let them use those rights as they have to.

Failing to Provide Relevant Disclosure

Employers should ensure they are fulfilling any obligations or requirements to reveal information, paperwork, or evidence that may be relevant. Whether in connection with a disciplinary or grievance hearing or during an employment dispute.

Employers should make disclosures in the required format and on time to avoid excessive delays in procedures or accusations of neglecting to disclose as required.

Records-Keeping

Managers and HR should maintain current records as a normal procedure. In a situation of tribunal claims, these should be relied upon instead of witness memories.

Unreasonable Delay

The tribunal typically disapproves of unjustified delays in procedures. The burden of making reasonable efforts to resolve matters rests on both the employer and the employee. However, more complicated or difficult cases such as those involving allegations of fraud or a criminal offence would take longer.

Employers should ensure their employees are aware of any pertinent deadlines and time constraints as well as any situations when reasonableness is required.

How IAS Can Help

Disciplinary and grievance issues are inevitable in workplaces. Both employers and employees are required to follow the guidelines of the ACAS Code of Practice in order to deal with workplace issues.

While some issues can be resolved internally without disagreement, some issues definitely need the professional guidance that lawyers provide. If you need assistance with workplace issues or expert advice on how to resolve the issue, our IAS lawyers can help you.

Through our employment legal support services and consultancy advice on HR policy formulation. We offer advice on any aspect of the ACAS guidelines and also customised advice and help to employers.

For more information on the ACAS Code of Practice, including advice on any issue regarding the ACAS guidelines, reach out to us today on +44 (0)333 414 9244 or contact us online.