The repeal of the statutory dispute resolution procedures was made final this month with the Employment Act 2008 receiving Royal Assent and the new Acas Code of Practice being published. These are expected to take effect on 6 April 2009. The Employment Act will not only repeal the statutory dismissal, disciplinary and grievance procedures but also give tribunals the discretion to increase or reduce awards by up to 25% if the employer or employee unreasonably fails to comply with the new Acas Code of Practice.

The final version of the Code of Practice addresses many of the criticisms raised on publication of the draft in May. In particular there are some meaningful obligations for employees and their representatives, so there is now something for Employment Tribunals to use as benchmarks for assessing whether there should be any reduction in the award of compensation.

Employees are required to:

  • raise and deal with issues promptly;
  • not unreasonably delay meetings or decisions;
  • act consistently.

There is also some useful guidance on two tricky areas: first, judging the reasonableness of an employee's choice of companion; and second, dealing with disciplinary cases where the employee persistently fails to attend. The Code now says if an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause, the employer can make a decision on the evidence available without the employee attending a hearing.

There are several issues that may still cause confusion. The Code refers to the promotion of "fairness and transparency" although transparency is not cited as an aim in the enabling legislation. Also, the Code provides for the power of dismissal to reside with a manager "who has the authority to do so". Employers must ensure that the manager taking any disciplinary hearing that might result in dismissal does actually have authority to dismiss. Referring the decision to a more senior manager after the disciplinary hearing will make the dismissal unfair on ordinary principles.

The Code expressly does not apply to dismissals due to redundancy or the non-renewal of fixed term contracts on their expiry.

We understand that the accompanying Guide is to be reviewed by the Acas Council on 26 November.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 19/11/2008.