New ACAS Code of Conduct

Since their introduction by the Employment Act 2004, the statutory disciplinary and grievance procedures have been heavily criticised. The Government have finally recognised the problems associated with these procedures and have responded by publishing the Employment Bill.

The Employment Bill proposes a number of changes to workplace dispute resolution including the repeal of the statutory dispute resolution procedures. The removal of the statutory procedures, which is due to take place in April 2009, will have a significant impact on the current ACAS Code of Practice and guidance. As a result ACAS has revised the code to take account of the changes proposed in the Employment Bill. The draft Code and the accompanying guidance have now been published.

ACAS plans to launch its new Code of Practice to coincide with the commencement of the Employment Bill.

The biggest change is a return to the more informal system that existed before the Employment Act 2004 and the introduction of the statutory procedures. Failure to follow the procedures will no longer result in an automatic ruling of unfair dismissal. However, the new Code will be far from optional in practice, as a failure to follow it may result in an increase of the award by anything up to 25% if the tribunal believes that the failure was unreasonable.

The accompanying guidance to the Code is purely advisory and will have no status in the employment tribunals. The guidance sets out good practice for handling disciplinary and grievance issues, giving practical examples of how to deal with disputes, including guidance on investigating cases, suspending employees and preparing for disciplinary meetings.

In very general terms the principles expressed within the Code are:

• the importance of fairness and transparency;
• employers and employees should try to resolve disputes without resorting to litigation;
• employers should keep written records of the process;
• all issues should be dealt with promptly;
• employers should act consistently;
• appropriate investigations should be made;
• where the matter is not performance related, meetings should be conducted by a manger who is not involved;
• employees should be informed of the basis of any allegation and given the opportunity to state their case
• employees have the right to be accompanied to meetings; and
• employees should be given the opportunity to appeal.

These principles are far from new, and will be familiar to most employers as being the general guidelines relating to fairness in resolving employment disputes.

There are however provisions within the Code that may affect the way in which employers currently deal with internal disputes, particularly in relation to disciplinary matters.

The Code has limited an employer's ability to discipline or dismiss an employee when they have been charged with a criminal offence. The Code requires employers to consider the effect of the charge or conviction on the employee's ability to do their job. A criminal conviction is not in itself a reason fir disciplinary action.

The key aim of the new Code is to encourage businesses and individuals to resolve disputes internally, saving money and time for both parties. It will be interesting to see, once the new regime is brought into force, whether it will be successful in achieving this aim.