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- Last updated: 6th October 2019
The ACAS codes of practice are advisory documents created by the Advisory, Conciliation and Arbitration Service (ACAS) and approved by parliament. Each ACAS code of practice sets out fair behaviour guidelines for employers and employees in five key areas of employment practice, as summarised in this guide.
This article covers:
- ACAS code of practice 1: Discipline and grievance
- ACAS code of practice 2: Disclosure of information to trade unions for collective bargaining purposes
- ACAS code of practice 3: Time off for trade union duties and activities
- ACAS code of practice 4: Settlement agreements
- ACAS code of practice 5: Handling in a reasonable manner requests to work flexibly
- What are the consequences of breaching the ACAS code of practice?
- Specialist guidance on ACAS Code of Practice
Employment law issues arise in all workplace environments. Dealing with employment issues effectively when they arise reduces the risk of tribunal claims and fosters a positive and productive working environment.
The ACAS guidelines are designed to provide clarity and certainty in standards for both employers and employees when handling specific issues at work. While not mandatory, employees and employers are expected to follow the guidelines. Failure to follow the codes would not in itself expose a party to proceedings but the tribunal does have powers to reduce or uplift awards in light of a party’s conduct against the ACAS standards.
The ACAS code of practice on discipline and grievance provides guidance to employers, employees and representatives seeking to resolve these conflicts in the workplace.
A key provision in the code states that disciplinary and grievance issues should be dealt with informally, wherever possible. Informal action is often the fastest and most effective way to resolve minor cases of misconduct or poor performance in employees. Equally, employers should make every effort to listen to and make reasonable adjustments for employee grievances.
When a grievance or disciplinary issue cannot be resolved informally in the workplace, the employer should consider using an independent third party to mediate a resolution. Otherwise, an employee may be able to bring formal tribunal action against the employer.
The ACAS code of practice explains what is expected of organisations and individuals in terms of fairness and transparency, throughout formal disciplinary or grievance proceedings.
Key points from the ACAS code of practice are:
- Employers and employees should seek to resolve problems informally, before considering formal action.
- Employment tribunals must take the ACAS code of practice into consideration when settling discipline and grievance cases.
- Employment tribunals can adjust any financial awards by up to 25 percent if a party has not complied with any code of practice provision and cannot justify this non-compliance with a reasonable excuse.
- The ACAS code of practice on discipline and grievance does not apply to non-renewal of fixed-term contracts or redundancy dismissals.
- Employers are responsible for carrying out thorough and fair investigations to establish the facts of any case.
- Both employers and employees should raise and seek to resolve issues promptly and without unreasonable delay.
- Employees must be allowed to give their side of the story before any decisions are made and should be given the right to appeal any formal decisions.
- Employers should allow employees to be accompanied during formal meetings.
In addition to the ACAS code of practice, employers and employees may refer to Discipline and grievances at work: The ACAS guide, which provides non-statutory guidance on discipline and grievance resolution in the workplace.
ACAS code of practice 2: Disclosure of information to trade unions for collective bargaining purposes
This section of the ACAS code of practice advises employers which information they may have a duty to disclose to trade unions, in the interest of good industrial relations practice. It serves to protect trade unions from unfair treatment which may prevent them from securing better working conditions for their members.
The ACAS code of practice refers to information without which a trade union representative may be disadvantaged during collective bargaining i.e. while negotiating wages, benefits and other conditions of employment.
During any formal proceedings, the Central Arbitration Committee will use the provisions set out in the code of practice as reference points to determine whether an organisation has dealt with a trade union fairly. While employers are not legally required to disclose any information, they may be penalised for failing to do so if the ACAS code of practice indicates it would have been the fairest and most appropriate action.
Key points from the ACAS code of practice are:
- The information in question must be in the possession of the employer and must relate to the employer’s activities.
- This code applies to both public and private sector organisations.
- Trade unions may make a formal complaint to the Central Arbitration Committee if they believe an employer has failed to disclose relevant information.
- The Central Arbitration Committee must take provisions in the ACAS code of practice into account during any relevant proceedings.
- If a complaint is upheld by the Central Arbitration Committee and the employer fails to disclose the requested information in a reasonable timeframe, an award may be made in favour of the trade union.
Section three of the ACAS code of practice aims to improve relationships between employers and trade unions, by providing advice on how to agree paid and unpaid time off for trade union representatives and members who wish to fulfil duties, conduct training or engage in union activities. The code emphasises the fact that employers and trade unions are jointly responsible for establishing specific, mutually advantageous arrangements which outline how time off for union-related activities and duties will work. ACAS recognises that different provisions should be made, concerning time off for:
- Trade union duties (e.g. collective bargaining or tasks relating to collective bargaining, accompanying union members to formal meetings)
- Training of trade union representatives
- Trade union activities (e.g. attending meetings, voting in union elections)
While specific time off guidelines for each of these cases may differ, the ACAS code of practice states that all trade union representatives and members must be permitted reasonable time off for activities and duties. Should a disciplinary or grievance case concerning time off for trade union duties or activities come before an employment tribunal, the tribunal is legally required to consider the code’s provisions when settling the matter.
Key points from the ACAS code of practice are:
- Trade union members and representatives must be allowed reasonable time off to participate in union activities or fulfil duties.
- Employers who allow union representatives time off for trade union duties must pay them for the time they would have spent in work. Where earnings vary based on the work completed, employers must pay an average hourly rate.
- Employers who allow union members time off to engage in union-related activities are not obliged to pay them for the time they would have spent in work. However, they may choose to offer payment.
- Both employers and trade unions are responsible for deciding what constitutes “reasonable” time off. This must balance the needs of the trade union and the employee with the operational requirements of the organisation.
Section four of the ACAS code of practice deals with settlement agreements, which can be used to resolve serious complaints, disciplinary issues and grievances in the workplace. These contracts are legally binding and if agreed by both parties, will waive the individual’s right to pursue the issue stated in the agreement in court, or before an employment tribunal. Usually, settlement agreements involve termination of the employee’s contract and some form of compensation paid to the employee by the employer, in exchange for the employee dropping the case.
A settlement agreement may be proposed by either party after a complaint has been raised, either before or during formal proceedings. You are under no obligation to consider or accept any settlement agreement proposed by your employer or employee, nor are you bound to accepting initial terms. Even when both parties are amenable to the idea of a settlement agreement, several rounds of negotiation are often required to establish suitable terms.
The ACAS code of practice sets out the rules and guidelines for establishing mutually beneficial settlement agreements. It aims to help employees secure a fair deal while making sure that employers meet conduct and confidentiality requirements.
Key points from the ACAS code of practice:
- Settlement agreements are voluntary. Parties are not legally required to entertain or agree to them.
- For a settlement agreement to be valid, the employee must have received advice from an independent advisor who is named in the contract.
- Settlement agreements only become legally binding once they are proposed in writing and signed by both parties.
- According to the common law “without prejudice” principle, proposed settlement agreements made in good faith cannot be used as evidence during an employment tribunal. This does not apply in cases where one or more parties have engaged in “improper behaviour” such as undue influence or blackmail.
This section offers guidance to employers and employees on handling requests to work flexibly. All employees have a legal right to request flexible working hours after 26 weeks of employment. Though, they may only submit a request once in a 12-month period. When submitting a request to work flexibly, employees should follow the provisions outlined in the code, which include:
- Submitting the request in writing
- Stating that they are making a statutory request to work flexibly
- Stating their proposed change in working hours and when they would like that change to take effect
- Acknowledging any adverse effects this change may have on the employer and proposing reasonable solutions to deal with them
Employers are not obliged to approve an employee’s request for flexible working hours. However, they should make every effort to consider and handle the request in accordance with the provisions in the ACAS code of practice, which include:
- Weighing the potential benefit to the employee against any detrimental effect on the organisation
- Meeting with the employee to discuss the request, if it cannot be approved outright
- Considering potentially satisfactory modifications to the employee’s request, if it cannot be approved outright
- Allowing the employee the right to appeal, if the request is denied
An employer who rejects a request to work flexibly must be able to show that they have done so due to one of the justifiable business reasons set out in the ACAS code of practice:
- The burden of additional costs
- Inability to reorganise work amongst existing staff
- Inability to recruit additional staff
- Detrimental impact on quality
- Detrimental impact on performance
- Detrimental effect on ability to meet customer demand
- Insufficient work for the periods the employee proposes to work
- Planned structural changes to the business
Should denial of a flexible working request become a factor in formal proceedings, the employment tribunal will use the ACAS code of practice to determine whether the employer acted lawfully.
Failure to adhere to the codes of practice would in itself not give cause to legal proceedings, since the codes act as guidelines and not law. However,the employment tribunal has discretion to evaluate conduct and how well parties have adhered to the code when settling employment-related disputes. Any employer or employee who has not followed the guidelines in the code of practice may be considered to have acted unfairly or unreasonably conduct. In such instances, compensation awards, penalties and the overall outcome of any formal proceedings can be adjusted to reflect any failure to meet the required standards.
As specialist employment lawyers, DavidsonMorris can advise on any aspect of the codes of practice.
For employers, we provide specific advice and support through our employment law support services and consultancy guidance on HR policy development.
We also deliver training to help ensure HR teams, line managers and supervisors have the skills and knowledge to implement the codes of practice correctly. For advice on meeting the ACAS guidelines, contact us.