UK: New Acas Code Of Practice on Disciplinary And Grievances

Last Updated: 28 November 2008
Article by Val Dougan

The recently published Acas Code of Practice on Disciplinary and Grievance Procedures (the Code), contained a few surprises, and will undoubtedly involve changes to most disciplinary and grievance policies. In this article, we provide an overview of the post April 09 regime, and action points arising from the new Code.


The Code will replace the universally disliked Statutory Dispute Procedures (SDP's) which were criticised for being overly technical and prescriptive. In response to this, the first draft of the Code, published in May 2008 was rather vague and principle based. Following consultation, the Code has now been tightened up and the result appears to involve a compromise between flexibility and certainty. Whether this will lead to a reduction in cases brought purely to establish what an employer needs to do remains to be seen. For example, the introduction of the opportunity to call witnesses at disciplinary hearings will no doubt generate plenty of debate.

Subject to Parliamentary approval, the Code will come into effect on the 6 April 2009, when the existing SDP's are abolished.

An overview of the New Regime

The abolition of the SDP's will bring a number of benefits for employers. Employees will no longer need to raise a grievance before proceeding to Tribunal, and a breach of the Code in itself will not attract liability. The rather unusual modified dismissal and grievance procedures which applied to post employment disputes have been removed, relieving employers of any obligations to deal with such issues.

The Code only applies to disciplinary and grievance cases, and therefore employers will no longer be obliged to follow the mandatory 3 step dismissal process prior to the expiry of a fixed term contract or a redundancy dismissal. Employers may wish to revisit these policies to remove any additional obligations which will become unnecessary following the abolition of the SDPs.

An employer who wishes to take disciplinary action will still be expected to inform the employee of the allegations, have a meeting with them and offer an appeal. If a grievance cannot be dealt with informally, then the Code follows a similar process to the SGP, with a meeting to discuss the issues and a right of an appeal. Employers will now have some flexibility around how they do this, depending on their size and administrative resources. The Code recognises that one size does not fit all.

From an employer's perspective, so far so good. Yet there are serious financial penalties if an employer unreasonably fails to follow the Code. If there has been an unreasonable breach of the Code, (by the employee or the employer) and a claim is successful, the Tribunal have the power to increase or decrease the award by up to 25%.

The New Code

The key changes from the previous version of the Code are outlined below with suggested action points for employers -

The foreword to the Code

This contains suggestions on suitable "independent third parties" to help resolve conflict. The new Code suggests this may be an internal mediator (as long as they have not been involved in the issue) or, in some cases, an external mediator may be appropriate. The previous draft did not specifically refer to mediation, which was one of the key recommendations of the Gibbons review. The foreword is not legally binding on employers, and this section constitutes best practice.

Action – Employers may wish to introduce mediation training for their HR staff and consider sourcing external mediators.

Recognition that there is no obligation to have a separate capability procedure. Capability may be dealt with under an organisation's disciplinary procedure, or if an organisation has one, then a separate capability procedure.

The introduction to the Code

Employees and "where appropriate" their representatives should be involved in the development of rules and procedures.

Action – If they do not already do so, employers should consider consultation measures with employees and their representatives regarding changes to the disciplinary and grievance policies.

Steps to follow during a disciplinary process, including

Where appropriate, send witness statements and written evidence to the employee at the same time as the letter inviting the employee to attend the disciplinary meeting.

A new clause 12 explaining how a disciplinary hearing should proceed with a new right to call witnesses. "the employee should also be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. They should also be given an opportunity to raise points about any information provided by witnesses. Where an employer or employee intends to call relevant witnesses they should give advance notice that they intend to do this."

Action - Many organisations do not allow employees to call witnesses to disciplinary hearings and this change may involve a review of your disciplinary policy and procedure. Although framed as a "reasonable opportunity" to call a witness rather than a "right" this will mean that employers could face an uplift of any compensation awarded, if they unreasonably refuse to allow a witness to give evidence at a hearing.

Guidance on what a reasonable request to be accompanied amounts to. The Code explains that a reasonable request would not involve a companion whose presence could prejudice the hearing or who is based far away from the meeting.

Action – employers may wish to revise their disciplinary policy to explain that right to be accompanied is subject to considerations of reasonableness.

Recognition that an employer can proceed with a disciplinary hearing in absence where an employee has been persistently "unable or unwilling to attend without good cause."

Action – under the old system an employer only needed to reconvene a meeting at least once after the original meeting. The requirement that a hearing should take place in absence only after an employee has persistently been unable or unwilling to attend a disciplinary meeting without good cause will be problematic for employers. This may also involve changes to a disciplinary policy.

Employees should submit written grounds of appeal prior to the appeal meeting.

Steps to follow during a grievance process, including

Recognition that where appropriate, a grievance should be dealt with informally.

Action – under the SGP , once a grievance was put in writing, this triggered the formal process and a 3 step meeting process. This is abolished with the emphasis on trying to resolve grievances informally and early before the situation escalates.

If, during the grievance meeting, it becomes obvious that further investigation is necessary the meeting should be adjourned for this to take place.

Action – this may involve a change in employers processes depending on how they conduct their grievance meeting and investigation.

Additional guidance on the right to be accompanied at a grievance meeting (which is in similar terms to the right to be accompanied in the disciplinary section).

Two new sections

A new section on overlapping disciplinary and grievance processes. If a grievance is raised during a disciplinary process, the disciplinary may be temporarily suspended to deal with the grievance. Where the issues are related it may be appropriate to deal with issues concurrently.

Action – this may also require an amendment to a disciplinary and grievance policies as many employers have their own approach to how they deal with such situations.

A new section explaining that the Code does not apply to collective grievances.


Acas plan to revise their non-statutory Guide, which accompanies the Code of Practice. They intend to publish this on their website as soon as possible. Hopefully this will clarify some of the more controversial new elements of the Code.

Click on the following link to access the revised Code.

Val Dougan
Dundas & Wilson CS LLP

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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