The final Code was approved by the Secretary of State for Business, Enterprise and Regulatory Reform last week and will now be laid before Parliament for approval. The main changes between the final and the earlier draft Code are as follows:

• the Code expressly states that it does not apply to dismissals due to redundancy or the non-renewal of fixed term contracts (although other procedural considerations may apply in these situations);
  
  
• new rules and procedures should be developed with the "involvement" of employees and representatives rather than with their "agreement". The final version emphasises that it is important to use rules and procedures and not just develop them;
  
  
• the previous draft of the Code suggested that it was good practice to allow an employee to be accompanied at investigatory meetings, even where the statutory right did not apply. However, the final version simply says that employers may allow such a right under their own procedures. This gives employers the flexibility to allow companions at investigatory meetings or not. If they are allowed, the employer's procedure can set out the parameters of their role;
  
  
• if there is a disciplinary case to answer, the employee should be notified in writing of the time and place for the disciplinary meeting and of their right to be accompanied, and should be given copies of any written evidence rather than simply a notification of what the evidence is;
  
  
• in misconduct cases, the Code requires that investigation and disciplinary hearings should be carried out by different people;
  
  
• decisions regarding what action will be taken following a disciplinary or grievance hearing should be communicated in writing, rather than in any other way;
  
  
• where an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause the employer should make a decision on the evidence available;
  
  
• a decision to dismiss should only be taken by a manager who has the authority to do so and the employee should be informed as soon as possible of the reasons for the dismissal, the date on which the employment contract will end, the appropriate period of notice and their right of appeal;
  
  
• employees should inform employers of a grievance in writing and should set out the nature of the grievance. This is a change from the previous draft, which state that it was merely best practice to set the grievance out in writing;
  
  
• employees should let employers know the grounds of the appeal against a disciplinary or grievance decision in writing;
  
  
• appeals should be heard by a manager who has not previously been involved in the case, rather than someone who is more senior to the manager who conducted the first hearing;
  
  
• the outcome of an appeal should be communicated to the employee in writing without unreasonable delay;
  
  
• the Code retains flexibility on overlapping grievances and disciplinary procedures. Where an employee raises a grievance during a disciplinary process, the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently;
  
  
• employers, employees and companions should make every effort to attend a disciplinary or grievance meeting; and
  
  
• employers are encouraged to use third party mediation but will not be penalised for a failure to use it or a failure to deal with cases informally, to keep written records or to have separate bullying, harassment and whistle blowing procedures.

For information on our training in this area please contact Sheila Gunn, Kim Pattullo or Blair Adams.

19 November 2008

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