Draft Acas code changes employers need to know about

Acas have deliberately moved away from language that may be viewed as confrontational or overly legalistic in the new proposed Draft Acas Code.

Terms such as “allegations”, “case to answer”, “penalty” and “first offence” are being replaced with more neutral language focused on workplace “concerns”.

The draft also replaces references to “employees” with “workers”, reflecting Acas’ view that good practice should apply across the wider workforce.

Another of the important Draft Acas Code Changes is greater clarity around obligations.

The draft explains that:

• Must indicates a legal requirement.
• Should indicates a strongly recommended action.
• Good practice represents Acas’ recommended approach.

This distinction is designed to benefit Employers understand which requirements are legally binding and which are recommendations.

The Draft Acas Code encourages Employers to raise concerns through routine management discussions or dedicated meetings before considering formal action.

Possible outcomes include:

• Clarifying expected standards;
• Providing additional training;
• Implementing reasonable adjustments;
• Offering mediation; and
• Deciding that formal action is necessary.

Importantly, informal meetings cannot result in a formal disciplinary warning. Formal sanctions can only be imposed following a formal disciplinary process.

Workers are encouraged to raise concerns directly where appropriate or discuss them with their managers, HR or other allocated representatives.

Employers are expected to listen seriously, investigate concerns promptly and maintain thorough communication throughout the process.

The proposed Draft Acas Code also recognises that mediation and facilitated conversations may help resolve workplace disputes without resorting to a formal grievance procedure.

A new section at the beginning of the draft introduces general principles of fairness.

These include:

• Promoting early resolution without the need for formal processes;
• Encouraging constructive workplace dialogue to resolve issues;
• Avoiding unnecessary escalation to formal processes; and
• Ensuring concerns are addressed fairly and promptly with the Worker.

Acas intends for these principles to apply across all organisations regardless of size of the Employer.

The current Code contains very limited reference to Equality Act obligations. The proposed revised Draft Acas Code addresses this directly.

Employers are reminded of their duty to make reasonable adjustments for disabled Workers and ensure processes remain accessible.

Examples include:

• Providing accessible meeting venues;
• Providing alternative document formats;
• In addition to bringing an accompaniment, providing the Worker the right to bring support Workers into the meeting who have knowledge of their disability; and
• Allowing interpreters to be present in the meeting when required.

Workers are also encouraged to discuss potential adjustment needs at an early stage with their Employer.

The proposed Draft Acas Code identifies conflict management as a key workplace skill.

Acas describes it as good practice for Employers to provide training and support to managers, Workers and representatives so they can confidently handle concerns before they escalate into formal disputes.

This demonstrates the overall theme of prevention rather than reaction.

Whilst the process for conducting investigations remains broadly the same, the proposed Draft Acas Code places greater emphasis on quality of the investigations.

It is encouraged that Employers are expected to ensure investigations are:

• Objective;
• Reasonable;
• Proportionate; and
• Focused on achieving fair outcomes.

The aim is to reduce the risk of flawed investigations undermining disciplinary or grievance processes.

One of the more notable Draft Acas Code Changes is the introduction of a dedicated section on suspension.

The Draft Acas Code states suspension should only be used where necessary to protect:

• The integrity of an investigation;
• The organisation;
• Other members of staff; and
• The worker being investigated.

For both Workers and Employers, it is worth noting that suspension is not a disciplinary sanction. For the benefit of the Employers, this should be communicated sensitively to the Worker.

The draft recognises that formal procedures should not automatically lead to disciplinary penalties.

Under the Draft Acas Code, alternative outcomes may include, but are not limited to:

• Additional training for the Worker;
• Workplace support;
• Mediation between the two parties;
• Facilitated conversations to iron out any issues; and
• Taking no further action.

This flexible approach is intended to improve workplace relationships and resolve underlying issues between the Worker and the Employer.

Employers will now be expected to explain in disciplinary invitation letters what attempts have been made to resolve the issue informally. Where no informal steps have been taken, Employers should explain why.

This reinforces the draft’s emphasis on attempting early resolution before starting formal proceedings.

Workers who are submitting formal grievances will be encouraged to explain:

• What outcome they would like;
• What informal steps have already been taken; and
• Why informal resolution was not attempted, in circumstances that it is deemed relevant.

This mirrors the obligations being placed on Employers during disciplinary procedures.

Acas have also expressed concern about increasingly lengthy and complex grievance submissions. This is largely due to Workers using Artificial Intelligence/ AI. The Draft Acas Code encourages Workers to submit a short and clear written explanation of their concern initially, allowing further detail to be provided later if required. The objective is to make concerns easier to understand and resolve more quickly.

Whilst Artificial Intelligence is not currently addressed directly within the Draft Acas Code itself, Acas are seeking consultation responses on the opportunities and risks associated with using AI in disciplinary and grievance processes separately. This would indicate that future versions of the Code or supporting guidance may provide recommendations on the use of AI in workplace investigations and decision-making.

For the first time, the Code includes a dedicated section on mediation and facilitated conversations. These processes may be suggested by either party and can be used at any stage of a workplace dispute.

Mediation is intended to provide a confidential and voluntary opportunity to resolve issues before they develop into formal disciplinary or grievance proceedings.

For formal meetings, the Draft Acas Code credits recent case law and encourages Employers to be flexible when a companion is unavailable. Employers may need to allow more time to rearrange a meeting so it would not create unreasonable delay.

The draft also acknowledges that allowing a companion at informal meetings may help resolve concerns and avoid discrimination in certain circumstances.

The proposed Draft Acas Code Changes represent a significant shift towards informal resolution, mediation and early intervention. Employers should review their disciplinary and grievance procedures now to ensure they align with the direction of travel set out by Acas.