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The ACAS rules are not legally binding but offer set procedures to be adhered to, derogation from which may result in an employment case being decided against an employer.
In the course of employment, an employee may be subject to disciplinary measures, in reaction to misconduct or below par performance. At the conclusion of these measures, a performance review is the way in which an employer monitors the employee’s compliance with any warnings issued.
Common issues that can arise in the workplace are conduct, timekeeping, absence, health and safety and use of personal items during work hours. Where informal conversations between an employer and employee do not resolve these issues, an employer may have to resort to formally prescribed proceedings.
When disciplinary proceedings are initiated, the employer must inform the employee in writing, notifying them of:
The stages of proceedings are: (1) investigation; (2) disciplinary hearing; and (3) potential appeal.
An investigation into employee misconduct must be carried out by an impartial and independent party. In more serious circumstances, an employee can be suspended pending the outcome of an investigation. This may be appropriate where the employee is disrupting the ordinary course of business, posing a threat to other employees or potentially impeding an investigation. In almost all cases, a suspended individual must continue to be paid pending their return to work or subsequent dismissal.
At the conclusion of an investigation, the employer must hold a disciplinary meeting. Here the employer will present their case, including witness testimony.
The employee should be permitted to present their own case and respond to allegations against them, and given a reasonable opportunity to make enquiries and submit evidence, including witness testimony. Both the employer and employee must provide notice in advance of witnesses to be called.
An employee has a statutory right to be accompanied to a disciplinary meeting by a designated Companion. In all cases, the request to be accompanied must be reasonable in nature. To qualify as a Companion, the individual must be:
In almost all circumstances, an employee will not have a right to be represented by a solicitor.
A disciplinary hearing may result in the issuance of a formal warning or other sanction deemed appropriate, including dismissal. Generally, a dismissal is only permissible if previous warnings have been provided. However, some instances of gross misconduct may result in automatic dismissal.
When considering sanctions, the employer must take into account the severity of the conduct or lapse in performance, and consider any mitigating circumstances presented to them.
An employer must be allowed to appeal the outcome of a disciplinary hearing. Appeal must be made in writing and dealt with as far as possible with management staff that were not previously involved in the initial hearing. Appeals must be heard without unreasonable delay.
In addition to disciplinary procedures for specific conduct, an employer should conduct ongoing performance management to ensure their business is operating smoothly and objectives are being met.
Performance management has a dual function. Through ongoing performance review, it first of all establishes a mutual understanding of expectations and standards between colleagues and their superiors. Secondly, while specific instances of misconduct or negligence can warrant dismissal, if an employee has an ongoing record of poor performance they can be subject to ongoing review and warnings, and dismissal can be achieved without the danger of it being considered unfair.
A performance review is a means of determining shortfalls in employees’ productivity and identifying where there are continuing training requirements. It also presents a means of monitoring whether previous disciplinary measures are being complied with. Employers must ensure that their performance review processes are not discriminatory in nature.
For contracts commencing after 2012, only employees who have been employed for two years can bring unfair dismissal claims. Unfair and constructive dismissal claims are brought before the employment tribunal.
A dismissal will be considered unfair if an employer fails to adhere to the ACAS Code, or if the dismissal is not accompanied by a valid reason. By law, employees have a range of rights, the exercise of which cannot form the reason for a dismissal, these include:
An employer cannot terminate an employment contract because an employee has reached retirement age.
If an employer puts undue pressure on an employee, such as inappropriate sanction or unwarranted investigation or performance review forcing the employee to quit their position, the employee may have a constructive dismissal claim against their former employer.
Unfair and constructive dismissal claims must be brought within three months of the relevant date of dismissal.
As mentioned above, failure to adhere to the ACAS Code may result in the entire process being considered unfair, if the matter is eventually brought before the employment tribunal. The employment tribunal may impose heightened, or reduced, compensation within a 25% bracket depending on the conduct of the employee or employer when handling the dispute.
For information on fees and funding relating to Employment Law cases, please see our fees page.
At Lewis Nedas, our Employment Law Solicitors have over 40 years ’ experience assisting national and international companies with a broad range of employment law matters.
Our Employment Lawyers have joined the Office Essential Network, which is a specialist organisation aimed at assisting young start-up businesses requiring advice on employment issues and contracts.
If you are an employee who feels they have been unfairly dismissed, we can assist in determining the basis and viability of your claim.
For further information or to speak to one of our Employment Specialists, please call us on 020 7387 2032 or complete our online enquiry form.
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Miles Herman is a clever, understated lawyer who is at the top of his game.
Richard McConnell carried out conveyance for my family on 4 London flats, 1 sale and 3 purchases. In each instance he was excellent. The attention to detail and communication throughout the process was perfect. I have recommended Richard to several family members and friends who have been extremely pleased. I would have no hesitation in using Richard McConnell and Lewis Nedas in the future should the need arise.
I wanted to take the opportunity as well to thank you for everything that you have done on this case. The result that we got on Monday will have a massive positive impact not only on my life but the lives of all my family including that of my own son. I personally was struggling to hold back the tears when the sentence was being delivered by the judge and I know my father and sister felt the same too. It must be fantastic to work in a way that can have such a positive impact on people’s lives and I want you to know how much it all means to us all. Thanks a million and good luck with all that you do going forward.
Lewis Nedas advised me in a serious case of insider dealing. The lead solicitor dealing with my case was Jeffrey Lewis, who impressed me with his quick grasp of the very complex circumstances. His in-depth knowledge of how the City really works and his long experience of serious financial crime gave me great confidence. But it was also his friendly and supportive attitude, and readiness to take calls (or return them promptly if he was in court) which was very reassuring. I was delighted with the positive result of the case, and the speed and efficiency with which it was handled.
Lewis Nedas Law Limited, led by Jeffrey Lewis, is known as ‘an exceptional firm with a strong team of talented and expert criminal lawyers’. The practice offers a wide range of high-end legal services, including on cases concerning espionage, terrorism, and murder. Siobhain Egan has strong experience in multi-jurisdictional matters; recent highlight engagements concern organ trafficking and terrorism financing, among other matters. Unan Choudhury is noted for his work regarding espionage and murders, while Keith Wood is an expert in High Court contempt proceedings which arise from criminal activity. Other key figures include Miles Herman, who represents clients in complex litigations.
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