Disciplinary and Grievance Procedure UK: the Acas Code, the 25 Percent Uplift, and Northern Ireland

In Great Britain, disciplinary and grievance procedures are governed by the Acas Code of Practice rather than a fixed statutory process, and a tribunal can adjust an award by up to 25 percent if either side unreasonably failed to follow it. Northern Ireland is different: it kept a formal statutory procedure that Great Britain scrapped in 2009, with its own award adjustment of up to 50 percent and a standalone route to a finding of unfair dismissal.

Great Britain: the Acas Code, not a fixed statutory procedure

Great Britain has no single statutory disciplinary or grievance procedure that every employer must follow step by step. Instead, the benchmark for a fair process is the Acas Code of Practice on Disciplinary and Grievance Procedures, current edition dated 11 March 2015 (acas.org.uk: Acas Code of Practice on disciplinary and grievance procedures). For discipline, the Code expects an employer to establish the facts, inform the employee of the issue, hold a meeting, allow the employee to be accompanied, give a decision, and allow an appeal. For a grievance, it expects the employee to raise the issue, the employer to hold a meeting, give a decision, and allow an appeal. The Code applies mainly to employees, though an employer can choose to extend the same process to workers.

This replaced a fixed three step statutory procedure that Great Britain abolished in April 2009, following the Gibbons Review, moving instead to the Code plus a financial consequence for ignoring it, described next.

The up to 25 percent tribunal adjustment

Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 lets an employment tribunal adjust an award for claims covered by the relevant Code, which in practice means the Acas disciplinary and grievance Code, for most claims including unfair dismissal and discrimination. Confirmed directly from the section's own text: the tribunal may, "if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%" where the employer unreasonably failed to comply with the Code (legislation.gov.uk: Trade Union and Labour Relations (Consolidation) Act 1992, section 207A). The same 25 percent ceiling applies the other way, as a decrease, where the employee unreasonably failed to comply. Either adjustment is discretionary, applied only where the tribunal judges it just and equitable, not automatic.

The right to be accompanied

Section 10 of the Employment Relations Act 1999 gives a worker who is required or invited to a disciplinary or grievance hearing, and who reasonably requests it, the right to bring a companion. The companion must be an official employed by a trade union, a trade union official whom the union has certified in writing as trained or experienced in acting as a companion, or another worker employed by the same employer (legislation.gov.uk: Employment Relations Act 1999, section 10). The companion can address the hearing, put the worker's case, sum it up, and respond on the worker's behalf, and can confer with the worker during the hearing, but cannot answer questions for the worker or otherwise stop the employer presenting its own case. Northern Ireland has the same right under Article 12 of the Employment Relations (Northern Ireland) Order 1999 (legislation.gov.uk: Employment Relations (Northern Ireland) Order 1999, Article 12).

Appeals

Both the Acas Code and the statutory right to be accompanied extend to any appeal against a disciplinary decision. An employer who does not offer an appeal, or who runs an appeal that simply rubber stamps the original decision without genuinely reconsidering it, risks the same 25 percent tribunal adjustment described above, on top of any weakness the missing appeal creates for the underlying decision itself.

Northern Ireland: a genuinely different, more formal regime

Northern Ireland did not follow Great Britain's 2009 reform. It kept its own statutory dismissal and disciplinary procedure, set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, which remains in force and unrepealed (legislation.gov.uk: Employment (Northern Ireland) Order 2003, Article 17).

Two separate consequences flow from a failure to complete that statutory procedure, and they operate independently of each other:

• Award adjustment (Articles 17 and 18 of the 2003 Order). Where the statutory procedure was not completed and the non-completion is wholly or mainly the employee's fault, a tribunal must reduce the award by 10 percent and may reduce it further, up to a total of 50 percent; where it is wholly or mainly the employer's fault, the same 10 to 50 percent range applies as an increase. The mandatory 10 percent can be waived, or reduced, only in exceptional circumstances that would otherwise make it unjust or inequitable. Article 18 applies the identical mechanism for the Fair Employment Tribunal.
• Automatic unfair dismissal (Article 130A of the Employment Rights (Northern Ireland) Order 1996). Separately from the award adjustment, an employee "shall be regarded... as unfairly dismissed if" one of the Schedule 1 procedures applied, it was not completed, and the non-completion "is wholly or mainly attributable to failure by the employer to comply with its requirements" (legislation.gov.uk: Employment Rights (Northern Ireland) Order 1996, Article 130A). This makes a procedural failure by the employer a route to a liability finding in its own right, not just a reason to adjust the size of any award.

So an employer or employee comparing notes across the Irish Sea is not looking at a cosmetic difference in tribunal names. Northern Ireland runs a materially more formal procedure, with a higher mandatory adjustment ceiling and an automatic unfair dismissal route that Great Britain's Acas Code and 25 percent discretionary adjustment do not have.

In Northern Ireland, the Labour Relations Agency offers free, impartial and confidential conciliation and mediation and publishes its own Code of Practice for formal grievances; in Great Britain, the Acas helpline gives advice on the same issues.

For the specific case of dismissal for serious misconduct, see gross misconduct. For challenging a dismissal itself, see unfair dismissal and employment tribunal. For the deadline to bring a claim, see employment tribunal time limits. For wider employer and employee duties, see the UK employment law hub.

Frequently Asked Questions

Is there a legal disciplinary procedure employers must follow in the UK?

In Great Britain, there is no single fixed statutory procedure. The benchmark is the Acas Code of Practice on Disciplinary and Grievance Procedures. A tribunal can adjust an award by up to 25 percent if either side unreasonably failed to follow it. Northern Ireland is different and keeps its own statutory procedure, described below.

What happens if my employer does not follow the Acas Code?

An employment tribunal can increase an unfair dismissal or discrimination award by up to 25 percent under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, if it considers that just and equitable given the employer's unreasonable failure to follow the Code.

Can I bring someone to a disciplinary or grievance hearing?

Yes. Section 10 of the Employment Relations Act 1999 (Article 12 of the Employment Relations (Northern Ireland) Order 1999 in Northern Ireland) gives you the right to be accompanied by a trade union official or a fellow worker, if you reasonably request it. Your companion can put your case and confer with you during the hearing, but cannot answer questions on your behalf.

Is Northern Ireland's disciplinary procedure the same as the rest of the UK?

No. Northern Ireland never repealed its statutory dismissal and disciplinary procedure, under Articles 17 and 18 of the Employment (Northern Ireland) Order 2003, with a mandatory 10 percent award adjustment extendable up to 50 percent. Article 130A of the Employment Rights (Northern Ireland) Order 1996 also makes a dismissal automatically unfair where the employer caused the non-completion, a separate consequence Great Britain's regime does not have.

Do I have a right to appeal a disciplinary decision?

The Acas Code expects an employer to offer an appeal, and the same right to be accompanied applies at an appeal hearing. Not offering a genuine appeal can contribute to the same up to 25 percent tribunal adjustment in Great Britain, or the Northern Ireland statutory adjustment where the equivalent procedure applies there.