An updated ACAS Statutory Code of Practice on disciplinary and grievance procedure came into force in April 2009, providing practical guidance for employers and setting out the principles for handling disciplinary and grievance situations in the workplace.

The Code makes it clear that these procedures do not apply to dismissals for redundancy or the non-renewal of a fixed term contract but they do apply to disciplinary situations, including those that relate to misconduct and/or poor performance.

The Code was applied in a recent case where a company wished to implement changes to terms and conditions of employment. About 85% of the company’s employees were happy with the changes but the remaining 15% were not. One of those refusing to accept the new terms and conditions was invited to a meeting by telephone and informed of his right to be accompanied. At the meeting he refused to agree to the variation of contract and was dismissed for Some Other Substantial Reason (“SOSR”). He brought a claim for unfair dismissal.

The tribunal decided that the ACAS Code of Practice on disciplinary grievance procedure applied to dismissals for SOSR. However, the tribunal found that the employee had been dismissed fairly because the company had a sound business reason to implement the changes and had acted within the range of reasonable responses. They also found that although the ACAS Code applied and the company should have put the employee’s invitation to the dismissal meeting in writing, the company had nevertheless complied with the spirit of the code. The employee had not been ‘ambushed’ at the meeting because he knew what the meeting was about; he knew that he might be dismissed as a result of a meeting and he was informed of his right to be accompanied. Given those circumstances, the tribunal held that the dismissal was not procedurally unfair either.

The Code states that it is ‘designed to help employers, employees and their representatives to deal with disciplinary and grievance situations in the workplace’ and in this instance it could be construed as surprising that the tribunal decided that a dismissal for SOSR was a ‘disciplinary’ situation.

This decision illustrates that it is advisable that employers follow the ACAS Code when they are inviting employees to meetings involving a grievance or that may result in any form of disciplinary sanction including dismissal. Employers are obliged to adopt a “fair” dismissal procedure and that is another reason why it is prudent to comply with the ACAS Code.