ACAS consults on draft updated Code of Practice on disciplinary and grievance procedures

Proposed changes emphasise the need for both employers and employees to try to resolve matters informally.

The current ACAS Code of Practice on disciplinary and grievance procedures was originally published in 2009 and has not been significantly revised since then.  At the end of July an updated draft Code of Practice on disciplinary and grievance procedures (the “Draft Code”) was put out for consultation. The consultation is open until 23 September 2026.

The Draft Code includes substantial revisions and a change of emphasis. If implemented in its current format, the updated Code of Practice will require employers to make key changes to their workplace policies and practical changes to their procedures.

Summary of key proposed updates in the Draft Code:

• Widening the scope to workers;

• Informal resolution to become part of the statutory Code;

• New references to the Equality Act 2010 and reasonable adjustments to relevant processes;

• Expanded guidance on when suspension will be appropriate; and

• Clarification on rearranging disciplinary hearings due to unavailability of the companion.

Widening the scope to workers

The Draft Code refers to workers not employees. This significant shift will expand the scope of the Code of Practice to include workers and employees, as by definition an employee is also a worker, but not every worker is an employee. This change would mean it is good practice for employers to follow the Code of Practice for workers as well as employees.

It should be noted however, that the power of the Employment Tribunal to reduce or uplift a tribunal award for any unreasonable failure to comply with the Code is still limited to employee claims only.  

Informal resolution to become part of the statutory Code

Many of the proposed changes to the Code of Practice are aimed at increasing the chances of resolving potential disciplinary issues and grievances informally rather than moving straight to a formal process. The term “concern” is used to refer to issues dealt with at the informal stage. Changes in the Draft Code aim to strike a less adversarial and more constructive tone.

There are substantial new sections within the Draft Code that would require both employer concerns, for example allegations of misconduct or unsatisfactory performance, and worker’s concerns, for example concerning their terms and conditions, or someone’s behaviour, to be handled informally in the first instance. While the current Code of Practice encourages employers and employees to try to resolve matters informally first, these informal steps are not part of the current statutory Code. Under the Draft Code, such informal steps would become part of the statutory procedures.

Importantly, when employers proceed with a formal disciplinary process, under the Draft Code employers would have to set out in the invitation to the disciplinary hearing the informal steps they have taken to try to resolve the concern, or explain why they have not taken them. Workers raising a formal grievance will also need to set out how they have tried to resolve the matter informally, or to explain why they have not done so.

Employers will need to bear in mind, as noted above, that the tribunal has the power to uplift tribunal awards by up to 25% for an employer’s unreasonable failure to comply with the Code. The same risk applies to employees, which may encourage individuals to engage with attempts to resolve concerns before a formal process commences.

The Draft Code sets out that it will be good practice for employers to provide training and support to managers, workers, and representatives to develop the necessary skills for effective early informal resolution.

New references to the Equality Act 2010 and reasonable adjustments to relevant processes

Previously the Code did not contain any reference to specific Equality Act obligations such as the duty to make reasonable adjustments. The Draft Code refers briefly to an employer’s responsibility to avoid unlawful discrimination, including making reasonable adjustments to arrangements for meetings, providing documents in an accessible format, and considering requests to be accompanied beyond the statutory right.   

Expanded guidance on when suspension will be appropriate

The Draft Code expands on the current Code of Practice guidance surrounding suspensions. Currently the Code states that suspensions should be as short as possible, regularly reviewed, and not treated as a disciplinary action.

Under the Draft Code suspensions would have to be justified and should only be considered under the following two circumstances:

1. if it is necessary to comply with a legal requirement; or

2. if an employer reasonably believes it would protect:

1. the investigation (for example, there is a reasonable concern about the worker damaging evidence or influencing witnesses);

2. the organisation (for example, if there is a genuine risk to customers, clients, property or business interests);

3. other staff; or

4. the person under investigation.

Given the impact suspension can have on the person under investigation the Draft Code sets out good practice for employers to follow including:

• communicating the suspension privately and sensitively;

• explaining the reasons for suspension clearly and that it is not disciplinary action; and

• explaining the next steps in the process, including who the person under investigation can contact if they have any concerns and signposting any support available.

It is worth pointing out that the draft amendments concerning suspensions reflect current good practice which will already be commonly followed by many employers. However, once these are set out in the statutory Code of Practice, there will be additional risks for employers who do not take this approach.  

Clarification on rearranging disciplinary hearings due to unavailability of the companion

In line with case law from 2017, the Draft Code makes clear that employers should in some circumstances consider agreeing to a worker’s request for a disciplinary hearing to be rearranged due to the unavailability of the worker’s companion, to a date more than the statutory five working days from the date proposed by the employer, as long as this does not cause unreasonable delay.

Next steps for employers

Employers should consider contributing to the consultation and should keep a watching brief on the changes to the Code of Practice. Grievance, Disciplinary, and Capability policies and procedures are likely to need to be reviewed to ensure they are in line with the new Code of Practice once this is published. Other policies which refer to these core policies may also need to be updated.

The full Draft Code and current consultation can be found here: Code of Practice on disciplinary and grievance procedures (draft) | Acas; Acas consultation: draft Code of Practice on disciplinary and grievance procedures | Acas.

If you would like to discuss any aspect of this article further, please contact our Employment team on 0113 244 6100. 

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The information in this article is necessarily of a general nature. The law stated is correct at the date (stated above) this article was first posted to our website.

Specific advice should be sought for specific situations. If you have any queries or need any legal advice, please feel free to contact Wrigleys Solicitors.