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Comments from ACCA
October 2003

I write to convey the comments of the Association of Chartered Certified Accountants (ACCA) on the consultation paper on the above matter.

Our view overall is that the regulations in their draft form would, in some respects, needlessly complicate the admirably simple statutory framework for disciplinary, dismissal and grievance procedures introduced in the Employment Act 2002. This would cause difficulties for employers in particular, who will not only have to learn to cope with new disciplinary requirements but will be faced with the possibility of new problems arising because of the way that the regulations are drafted. The object should, in our view, be to follow the example of the basic statutory procedures and keep employers� obligations clear and simple to administer. The scope for parties to bring unsustainable claims should also be curtailed as far as possible. With this in mind, we suggest that the Department needs to re-consider, in particular, the issues covered by questions 1 and 6 below.

Our comments on the specific questions raised in the paper are set out below.

Q1 Is the definition of �disciplinary action� appropriate?

The proposed exclusion of warnings and suspensions from the definition of �relevant disciplinary action� appears to be somewhat arbitrary, given that suspension, even on full pay, will often have at least the appearance of disciplinary action. Employers will therefore have to distinguish between �in-house disciplinary action� and �relevant disciplinary action�, the latter alone falling within the scope of the new regulations. The potential for confusion on this matter is also increased by the proposal to include warnings and suspensions among the matters which are to be covered under the provisions on grievance procedures. If these matters are to be excluded from the new definition, the proposed Code of Practice will need to give clear and accessible guidance to employers on what does and does not amount to disciplinary action under the new regulations.

Q2 Are the circumstances where the �modified� dismissal procedure should be used adequately defined?

Yes.

Q3 Should there be a separate ACAS Code of Practice for small employers?

There are several elements in the draft regulations which have the potential to cause difficulty to small employers in particular. These include the tests of �reasonableness� in paragraphs 4 and 5, the rules regarding meeting formalities and the statutory requirement for a more senior manager to attend the appeal hearing than attended the earlier disciplinary meeting. A separate Code of Practice for small employers would, therefore, be welcome.

Q4 Is it reasonable to expect the parties to hold a meeting to discuss a grievance after the employment relationship has ended?

There should be no compulsion for the employer to hold such a meeting to discuss a grievance.

Q5 Is it appropriate for complaints about suspensions and warnings to have to be raised as grievances before they can be presented to a tribunal?

Yes. If suspensions and warnings are not to be treated as �relevant disciplinary action�, then the statutory grievance procedure would be an appropriate means by which an employee can complain about the treatment meted out to him or her.

Q6 Are the proposed exemptions appropriate?

The exemptions in paragraph 5(1)(a) and (b) of the draft regulations will create uncertainty for both sides because of their vagueness and the proposal that �harassment� be defined principally by reference to the personal perception of one of the parties. The regulations as drafted are thus likely to prove problematic. The consultation paper itself adds to the potential for uncertainty by saying, in Chapter 4, that �stress and anxiety will not usually be sufficient� to activate the exemption in paragraph 5(1)(b). Rather than offer pre-emptive exclusions on the grounds set out in paragraph 5(1)(a) and (b), it would be better to exclude these, but to provide that any actual or threatened behaviour of the kind referred to in the course of statutory procedures would give the other party the right not to follow the procedure concerned through to its conclusion. So, in paragraph 5(1)(a), exemption would be dependent on an actual significant threat received by a party to himself, his property or any other person, and in paragraph 5(2)(b), the definition of �harassment� should omit the reference to the perception of the person subject to the alleged conduct.

Q7 Are there any other circumstances in which exemptions should apply?

No.

Q8 Is it reasonable to expect employers to rearrange the Steps 1 and 2 meetings if either party cannot attend?

Yes, as long as the employer, in re-scheduling the meeting, is not permitted to take advantage of the known or anticipated unavailability of the employee.

Q9 Are exemptions for �collective dismissal and disciplinary matters appropriate?

Yes.

Q10 Is it appropriate that there should be no time limit extensions for employment tribunal complaints about matters falling under the dismissal and disciplinary procedures?

Yes.

Q11 is it appropriate to allow a three-month extension for tribunal claims about grievances?

The standard statutory procedures regarding grievances should be required to be followed. No acknowledgement should be given of applications presented to tribunals which have not complied with statutory procedures.

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