- This month we have been blogging about recent changes to employment law but, as a number of you have asked for clarification on this particular issue recently, I thought it would be helpful to focus this weeks blog on an unchanged but very relevant and practical point relating to the ACAS Code of Practice .
- We have all been there… a member of staff finds themselves in a disciplinary hearing and you are called to chair it. The hearing takes place and you find the evidence to be clear, the investigation thorough and the result is that you hand down a disciplinary sanction. You write to the employee and sigh. Phew, it’s over… or so you thought!
Although it is commonly considered that five working days is sufficient time, the ACAS Code is clear that this time limit may be extended in “particular circumstances”. It does not state what those circumstances may be but the following things are always helpful to consider:
· Is the appeal sufficiently detailed in relation to the grounds and any additional evidence?
· When did the clock start ticking? Always count this from the day after the employee should have received your letter and not the date of the letter.
· Do you state working days or calendar days?
· Was the appeal submitted directly? Check how long the office had the appeal before sending it to you.
· The power of the precedent! Is your approach consistent with other late appeals?
· Is the reason for their delay reasonable?
· Is there a reason why you do not want to hear it?
· What is the risk of not hearing the appeal? In cases where an employee is dismissed an appeal may give you a golden opportunity to avoid a tribunal claim. But beware of not seeing the risk attached to lesser sanctions. If the employee has not been dismissed they cannot claim unfair dismissal but there may still be a risk of a constructive dismissal claim and if the warning ultimately leads to a dismissal being made for a further offence earlier warnings may be considered at any later tribunal.
Ultimately, setting a time limit within the policy can help to focus an employee’s mind and prevent issues from dragging on. A limit of five working days (starting the day after the decision is received) is likely to be considered reasonable as long as you have given due consideration to the appeal submitted. However, never automatically dismiss and always consider whether it is better to hear an appeal than to not and realise later that a simple issue within the process could have been rectified through the appeals process.