A transport business will eventually face the conversation nobody wants: the driver who must be disciplined, or the grievance that must be heard. What most small fleet owners do not know is that the procedure they follow is itself being graded. The Acas Code of Practice on disciplinary and grievance procedures is the minimum an employer should follow - and employment tribunals can adjust any award by up to 25 per cent for unreasonable failure to comply with it. On a sizeable unfair dismissal award, that uplift alone can exceed what a fair procedure would have cost.
The Code is not legislation. Acas is explicit: a failure to follow the Code does not, in itself, make a person or organisation liable to proceedings. But employment tribunals will take it into account when considering relevant cases, and the 25 per cent adjustment runs both ways. If the employer unreasonably failed to follow the Code, the award can be increased by up to 25 per cent. If the employee unreasonably failed - for example, never raised a grievance before resigning and claiming constructive dismissal - the award can be reduced by up to 25 per cent.
One softener for small firms: the Code acknowledges that what is reasonable depends on all the circumstances, and tribunals will take the size and resources of the employer into account. A three-truck operator is not expected to run an HR department. But “small” buys you simplicity, not exemption - the core steps still apply.
The Code’s sequence is logical enough that every step sounds obvious - until you watch a real case skip half of them.
Start with investigation, without unreasonable delay, to establish the facts. Sometimes that means an investigatory meeting with the employee; sometimes it is simply gathering evidence. An investigatory meeting should not, by itself, result in disciplinary action - it exists to find facts, not to pre-judge them. Where practicable, different people should carry out the investigation and the disciplinary hearing, so the person judging is not the person who built the case.
If there is a case to answer, notify the employee in writing. The notification must contain enough information about the alleged misconduct or poor performance - and its possible consequences - for the employee to prepare. Copies of written evidence, including witness statements, would normally go with it. The notification also gives the time and venue of the meeting and advises the employee of the right to be accompanied.
Hold the meeting without unreasonable delay, while allowing reasonable preparation time. At the meeting, the employer explains the complaint and goes through the evidence; the employee sets out their case, answers the allegations, asks questions, presents their own evidence, and can call relevant witnesses - with advance notice on both sides. After the meeting, the decision is communicated, and the employee is told of their right to appeal.
Appeal is not optional decoration: the Code requires that employees be allowed to appeal any formal decision, and the appeal should be heard by someone not previously involved, where practicable.
Employees have the right to be accompanied at any formal disciplinary or grievance meeting. The companion is typically a colleague or trade union representative. One trap the Code flags via case law: requests to postpone a hearing to accommodate the worker’s companion need sensible handling - the Employment Appeal Tribunal’s judgment in Talon Engineering Ltd v Smith is cited on exactly this point, and the Acas guide covers it. Refusing a short postponement so the companion can attend is the kind of unreasonableness tribunals punish.
The grievance side runs in parallel: the employee raises the issue - ideally informally first - the employer holds a meeting without unreasonable delay, the employee can be accompanied, a decision is given, and an appeal is offered. The Code’s theme throughout is promptness: employers and employees should raise and deal with issues promptly and not unreasonably delay meetings, decisions, or confirmations.
The uplift is where the Code stops being a nicety. Consider a driver dismissed on the spot after a tachograph infringement: no investigation, no written notification, no meeting, no appeal. Even if the dismissal had a fair reason lurking inside it, the procedure was a car crash, and the tribunal can mark the award up by a quarter for it. Transport generates more than its share of flashpoint dismissals - hours infringements, telematics alerts, customer complaints, failed drugs tests - and every one of them deserves the Code’s sequence, not a car-park sacking.
Write the procedure down, one page is enough: investigate, notify in writing with the evidence, meet with the right to be accompanied, decide, offer an appeal. Name who does what, and in a two-person business, accept that you may need an external HR consultant or your trade association to hear an appeal so the “different person” principle survives. Keep notes at every stage - the Code’s paperwork is what proves the Code was followed.
The Code costs nothing to follow and up to 25 per cent of an award to ignore. For a fleet, that arithmetic should settle the argument.