The new draft statutory disciplinary and grievance procedures are due to come into effect in April 2009, with a promise of being far more simple and far less time-consuming. Charles Price examines whether this is indeed the case and what HR professionals need to know about the new Acas code.

The new Acas Code to deal with workplace disputes will be slashed from 40 pages in length to 10. A review of how workplace disputes are handled was conducted last year by Michael Gibbons and the shorter, simpler code is a result of that. The review found that regulations governing dispute handling had failed and needed to be less prescriptive.

The last code, although worthy of admiration in principle, made matters worse with its Byzantine complexity and stringent provisions. The source of law from which the old procedures emanated, the Employment Act 2002 (Dispute Resolution) Regulations, was incredibly lengthy and yet posed more questions than it answered.

The Employment Appeals Tribunal in London was left to fill in the gaps with a chain of case judgments which, for example, told us what medium and language actually constituted ‘a grievance’ under the Act and that the requisite request for an appeal could be a verbal one.

Solicitors and HR professionals have spent more hours than usual when confronted with a dispute in attempting to comply with the legislation. Whatever benefits the regulations gave us in encouraging workplace mediation have been stripped away by the time it took to guess their meaning.

The new law, approved by the Secretary of State for Business, Enterprise and Regulatory Reform (BERR) Peter Mandelson, will now be put before Parliament before coming into effect on 6 April 2009. It promises to free up the over burdened HR and legal teams and yet hopefully still encourage mediation.

Crucial function

The code will have a crucial function in employment cases once the government’s Employment Bill becomes law. The failure alone to use the code does not in itself make a person or organisation liable to proceedings, although failure to follow the code in relevant cases will be taken into account.

Tribunals will be able to increase any award by 25% (as opposed to the old 50% maximum) if the employer has not followed it. Conversely, if the tribunal feels an employee has unreasonably failed to follow the guidance set out in the code it can reduce any award they have made by up to 25%.

The code still advocates the same principles of the old one but is less prescriptive. For example, rather than prescribe a rigid structure of three meetings when dealing with a disciplinary it sets out principles by which the employer must adhere. Broad statements such as, ’employers should raise and deal with issues promptly’ and ’employers and employees should act consistently’ replace set timetables. Other useful guidance is given when dealing with disciplinary cases for example, ‘where practicable, different people should carry out the disciplinary and investigation meeting’.

Subtle differences in the law seem to appear in the new code. Two that caught my eye were that there is no guidance in the new code stating that an employer ‘must’ inform the employee of a right to appeal. Further, the employee is told to let the employer know their grounds of appeal ‘in writing’, a change of approach from the old. Another change is that the code does not apply to redundancy – expect to see another new code to deal with that.

When you look at the new draft code it seems almost like a list of principles with which to apply to a dispute rather than a prescriptive old list of strictures and heavy handed penalties. This should in practice save a lot of time whilst preserving admirable principles, however as with every codified document it will need legal interpretation, so I am not convinced that the new code will not require another raft of case decisions to help us interpret its meaning.

For example, what is the meaning of ‘act promptly’? Is this three weeks or three months? I fear we will still need lawyers to help us interpret what seems like the obvious. Those dealing with employment disputes however, will welcome the new code and should see it as a simple guide to dealing with workplace problems and those who stick to it are unlikely to fall foul of an employment tribunal.

Charles Price is a barrister at No5 Chambers.