ACAS have published a new draft Code of Practice on Disciplinary and Grievance procedures (the “Draft Code”). The current code of practice was published in 2015 (the “ACAS Code”) and the Draft Code proposes some significant updates to the well established ACAS Code, subject to undertaking a consultation on the proposals (which will conclude on 23 September 2026)..
Businesses and workers are generally well aware of the ACAS Code. It provides guidance on how to manage potentially difficult situations in the workplace and, perhaps more notably, failure to follow the ACAS Code on either side can warrant up to a 25% uplift on compensatory awards given by the Employment Tribunal. With this in mind, it is important to be aware of any potential changes to the ACAS Code. Although only a draft, the Draft Code gives us a good idea of the general direction of travel for forthcoming changes.
Some of the most notable changes showing in the Draft Code are below.
Informal Resolution
This was a previously light-touch mention, with the ACAS Code focusing on the formal procedure. The Draft Code gives much more prescriptive guidance on how to attempt an informal resolution. This includes acting promptly and how to respond to different types of concern (legal entitlements, complaints about a colleague, etc) as well as guidance for conversations between the parties. The Draft Code also presents possible outcomes of an informal resolution, including:
- Clarifying standards and expectations of conduct
- Identifying training needs
- Identifying reasonable adjustments
- Commencing mediation
- Commencing a formal procedure.
It is important to note that the informal resolution provisions apply both in grievance and disciplinary scenarios (although, in relation to the latter, presumably will only be appropriate in less serious cases of misconduct).
Mediation
Not previously addressed in the ACAS Code, the Draft Code states that, while mediation may not be available in every organisation, it is good practice to offer it in “appropriate case” and “where possible”. We anticipate that businesses will need to evidence that they have considered if mediation would be suitable in the context of a given concern and, if this can’t be offered in practice, why not.
Suspension
At present, suspension is approached on a case-by-case basis, as necessary, for a formal procedure to be effectively carried out. The Draft Code is much more prescriptive and lists specific points that an employer should consider when deciding if suspension is necessary or not. The Draft Code also provides guidance for communicating the fact of suspension to the worker.
New language
The language used in the Draft Code marks a departure from the current ACAS Code, with two notable shifts. Firstly, the scope of the code has been broadened to refer to workers instead of just employees and, secondly, the specific reference to disciplinary or grievance is much reduced (particularly in the informal context) and the broad term concern is used instead. This suggests a reduced focus on the whether a concern is a disciplinary or a grievance matter, but actually on the way in which the company acts fairly and can justify its actions within the framework of the Draft Code. We expect this is to reflect the increase that all employers have seen in overlapping disciplinary and grievance matters and reactionary grievances.
Unlawful Discrimination
The Draft Code expressly reminds employers of their obligations under the Equality Act 2010 and signposts reasonable adjustments that an employer ought to consider when seeking to accommodate a worker’s needs throughout a process. While employers are often aware of these obligations, the express reference to the Equality Act in the Draft Code signals a greater consideration of the need to evidence that reasonable adjustments have been considered and applied as far as necessary.
Manager training
The Draft Code states the ned to provide training within an organisation so the workforce at all levels has the relevant “skills and confidence needed to resolve concerns early and effectively”. To satisfy this limb of the Draft Code, organisations will need to think about how training might be different for different roles within the organisation, and how best to administer the training.
What next?
The established principles are not being removed, but rather new expectations for employers and employees are being built in. Our key take away is that employers must not forget what we already know about effectively managing disciplinary and grievance processes, but should now also consider the process more broadly in terms of potential informal alternatives to the formal process and consciously considering whether suspension is an appropriate step. Employers must be able to evidence the reasons for managing the process in the chosen manner and should document the reason for conducting a process in a given way in relation to a particular case, rather than merely following the formal process..
When, or if, the Draft Code comes into force, there will be a pressing need for all employers to review policy documents and arrange necessary training for staff members to ensure that their processes reflect the updated requirements of the Draft Code.
Nick Benton comments:
The Draft Code represents a significant shift in the mindset required from employers and employees towards informal resolution over formal action. We anticipate this shift is to try and ease the growing pressure on the overwhelmed ACAS and Employment Tribunal systems. While there is no current timeline for implementation, employers should be considering steps that will need to be taken to review policies and procedures and revise training programmes to reflect the approach and cultural shift anticipated by the draft code so they are ready when the time comes.
If you need help with drafting or updating policies and procedures, please contact a member of the team here.
The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.
