Disciplinary Procedures; the impact of changes on the ACAS code of practice

between 2004 and 2015.

Introduction

Two key factors have occasioned the changes in the ACAS Code of Practice

(2004) and its 2015 counterpart; the Gibson report of 2007 and the “Toal and

another v GB Oils Ltd” case in the employment tribunal (EAT) in 2013. In Gibson’s

report, commissioned by the UK government to address dispute resolution

mechanisms, critical issues raised against ACAS (2004) included the formal nature

of the mechanisms, its prescriptiveness nature, and the irredeemable rigidity of the

conduct. In the Toal and another v GB Oils Ltd” case in the employment tribunal

(EAT) in 2013, approved companions' rights in a disciplinary case against employees

were introduced into the code. Since then, the ACAS has played a crucial role in

influencing how disciplinary issues are reviewed and determined.

In reviewing the ACAS code of practice over time, the government of the UK

has sought to make the code more participatory than prescriptive, flexibility over

rigidity, emphasis on informal settlement of disputes to reduce costs to all parties,

including the government (Gibbon, 2007, p19), choose mediation rather than

confrontation, formalization of warning, right of a company in disciplinary hearings

and elevation of indicative gross misconduct as a grievous offense in the workplace

(Harris, 2019, p32).

Disclosure of information on accusations and timely determination of cases.

The ACAS (2015) made it compulsory for employers to inform their

employees of accusations levelled against them formally. In Archer and another v

Solvent Resource Management Ltd, the defendant (Solvent Resource Management)

was found to have grossly breached the ACAS code of practice by failing to furnish

the plaintiffs with relevant formal information on the nature of their accusations

(ExpertReport, 2011). The EAT underlined that employers are responsible for

informing their employees of what they are accused of. Formal disclosure of

accusations should be done in written witness statements. It should be provided

preferably during the first hearing or beforehand to enable the accused party

sufficient time to prepare a defense (ExpertReport, 2011, article).

The EAT also underlined that disclosing information to the accused is a

fundamental principle of natural justice. In Natural Justice, the accused is presumed

innocent until proven guilty and is entitled (Solum 2006, SRIVASTAVA, 2020).

The ACAS (2015) also prescribed that the Employer always keeps records of

the whole disciplinary process. A disciplinary process should always take place when

the memory of the events is still fresh. In Bentley v Supertravel Omnibus Ltd —

which had contributory significance to the ACAS 2015—the defendant was accused

of deliberately falsifying employee disciplinary records as Supertravel Omnibus Ltd

not only dragged the disciplinary procedure but didn’t keep disciplinary records of the

proceedings (ExpertReport, 2010). In Towart v Northumberland Tyne and Wear

NHS Foundation Trust, the EAT argued that a disciplinary case must be dispensed

quickly (ExpertReport, 2011,9 ).

Implications of decisions
By failing to disclose all the relevant information to the employee, solvent

resource management was found guilty of breaching the ACAS code of practice and

ordered to compensate the plaintiffs. In Bentley v Supertravel Omnibus Ltd, the

defendant was ordered to compensate its former driver, as they had breached the

ACAS code of conduct by failing to keep records of Mr. Bentley’s disciplinary issues.
In Towart v Northumberland Tyne and Wear NHS Foundation Trust, the plaintiff, Ms

Kempt Towart worn her claim of disability discrimination as the defendant failed to

make reasonable adjustments that will help the plaintiff discharge her duties

(ExpertReport, 2010,2011, 2013).

The informal settlement of disputes

The rigid and formal nature of the 2004 code was noted in the analysis done

by Gibbon. “Around 75% of claims made to the tribunal are resolved without a

hearing” (Gibbon, 2007, p9), with the majority of cases being simple wages disputes

worth less than £100. Gibbon’s findings underpinned the need for informal

settlement of disputes. While there are challenges, informal settlements are

advantageous to both employers and employees in regard to time wastage and

costs (Sanders et al., 2015).

Right of a trusted companion.

Toal and another v GB Oils Ltd was instrumental in reviewing the ACAS 2009

to ACAS 2015. In a case before EAT in 2013, the tribunal ruled that employees have

a right to enjoy a companion’s presence during disciplinary procedures. The

company should either be a Trade union representative, a colleague or an official

(falling under the category of trusted companions), or other people who the employer

is at liberty to approve or dismiss (Case, 2013, p6). In Campbell v Mitie Managed

Services Ltd, the request for accompaniment should be based on reasonable

grounds, and the employer should be informed of the request. (ExpertReport,

2013b). The findings by the two EATs provided both the employer and the employee

with excellent platforms for discussion and consultation, thereby developing rapport
among themselves. It is important to note that this determination provides both

employers and employees flexibility in exercising control over the issues at hand.

Right of appeal

The right of appeal is also emphasized in the ACAS code of practice

changes. As argued in Medhin v Compass Group UK & Ireland Ltd t/a Restaurant

Associates, the fundamentality of the right of appeal is entrenched in the principles of

natural justice (Al-Haidar, 2018). Employers are morally and legally obliged to

ensure that appeals mechanisms are available in the administrative remedial system

if the accused is not satisfied with the disciplinary decision (Harris, 2018). The EAT

ruled that the defendant was wrong for dismissing the employee and blocking appeal

mechanisms as ‘eating a muffin’ only was not enough reason for dismissal, and

internal administrative remedies would have been sufficient.

Conclusion

The ACAS code of practice changes has profoundly affected how workplace

disciplinary issues are resolved in the country. One of the significant take ways is

that the ACAS has shifted from providing or dictating a prescriptive approach and

instead encourages a participatory approach. Both employers and employees are

encouraged to focus more on solving the disciplinary issues through informal

measures rather than rushing to the tribunals at the slightest whim. The EATs should

be a place of last resort for very grievous issues such as gross misconduct. Both

parties are winners in the new ACAS code of practice. While the employers have lost

the autocratic control they had over the disciplinary process, the employees have

also gained more rights and responsibilities to ensure that they deliver their duties

harmoniously and diligently. The ACAS code of practice review has brought a sense
of democracy to the work environment and undoubtedly improved the employer-

employee relationship.
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