ACAS Consults over Disciplinary and Grievance Code

ACAS has published a draft new Code of Practice on Disciplinary and Grievance Procedures for public consultation. This is a very important document, and the first full rewrite since 2009; although the Code was last updated in 2015, with minor adjustments.

The consultation runs until 23rd September 2026, and ACAS has been clear that it wants to hear from employers and HR practitioners, not just lawyers and trade union bodies. It would be a good time to make your voice heard, as such consultations do matter.

Why is it so important? Because the ACAS Code is not just guidance, it is actually a Statutory Approved Code of Practice (ACOP) requiring Employment Tribunals to take it into account in relevant cases. They can adjust compensation awards by up to 25% (up or down) where either party has unreasonably failed to follow it.

When the Code changes, and it will, the standard against which the handling of a dismissal or grievance is judged changes with it. Given the scale of what is proposed, the sensible time to start thinking about your policies, letters and Management practice is now, not when the final version lands.

So, here is what has changed and why it matters.

‘Worker’ replaces ‘employee’ throughout

The draft swaps ‘employee’ for ‘worker’ in most places, expanding the scope of the Code beyond employees to the wider worker category – which for many SMEs will include casual and some contract staff.

One nuance that is worth knowing: the Tribunal’s power to adjust awards by up to 25% for unreasonable failure to follow the Code only applies to employees, not to the wider worker category. ACAS has flagged this itself and is asking for views on whether the terminology change causes any unintended consequences. Even so, the safest practical course for employers will be to apply the same standards to everyone who works for them.

Informal resolution moves inside the Code itself

At present, the ACAS advice to resolve matters informally before escalating them to a formal procedure sits in the Foreword to the Code, not in the statutory text. Today, Tribunals are only required to take the statutory Code into account when deciding whether to apply the uplift.

The draft now makes informal resolution important and relevant, and brings it inside the statutory text for the first time. There are dedicated sections on employers addressing concerns informally, and on workers raising concerns informally. In practical terms, a failure to attempt informal resolution could, for the first time, be a factor a Tribunal weighs when considering an adjustment to an award.

For employers, the message is not to allow concerns to build up unspoken. Talking to people early, and documenting those conversations, is far better than a sudden formal disciplinary after months of putting up with a problem without comment. The same applies to workers who should not expect to launch straight into a formal grievance without first trying to raise the issue with their employer.

Letters will need to explain what informal steps were taken

Under the proposals, when an employer invites a worker to a formal disciplinary meeting, the letter will need to state what steps were taken to resolve the matter informally first, or explain why none were taken. Again, workers are expected to do the same when raising a formal written grievance.

While this is a genuinely new requirement, we have always advised employers to record in disciplinary invitations what the employer has done to resolve matters informally. As ever, keeping a record is crucial. Too often, however, a Manager says “I have spoken to them on numerous occasions” – and when you ask for the documented evidence, there is none. Under the new Code, that gap will be far harder to defend. Managers will need to get into the habit of making a brief written note every time they have an informal conversation about conduct or performance.

Suspension gets a proper necessity test

The existing Code implies that suspension should only be used where necessary, but says little more than that. Now, suspension during an investigation should only be considered where it is needed to comply with a legal requirement, or where the employer reasonably believes it is necessary to protect the investigation, the organisation, other staff, or the person under investigation.

Any suspension should be as brief as possible and kept under review, and the draft adds good practice guidance on communicating the decision sensitively, explaining the reasons, and making clear that suspension is not itself disciplinary action.

This puts into the Code something the case law has said for a while: suspension is not a neutral act, and should never be the default response to every allegation. We have always said that clients should think carefully before suspending, so this change should hold no fears for employers who already take that disciplined approach – but it does mean any knee-jerk suspensions will carry greater risk.

New standalone sections on equality, training and mediation

Reasonable adjustments. The draft adds new guidance reflecting Equality Act obligations, with examples of adjustments that may be needed to keep a process fair – accessible venues, documents in accessible formats, and allowing a support worker or interpreter where needed. Workers are encouraged to raise adjustment needs early. Many well-run procedures already cover this, but it is worth reviewing the wording of your disciplinary and grievance procedures once the final Code is published.

Manager training. Employers are encouraged to provide training and support so that Managers, workers and representatives have the skills and confidence to resolve concerns early. It is framed as good practice, in recognition that training budgets vary – but the direction of travel is clear. If informal resolution is about to carry real legal weight, then managers who avoid difficult conversations, or who have them but never write anything down, become a business risk.

Mediation and facilitated conversations. Mediation is not mentioned at all in the current Code. There is now a full section, making clear that mediation is voluntary and confidential, can be suggested by anyone at any stage, and that formal processes should be paused while it is attempted. For smaller employers, where a fractured working relationship can poison a whole team, this is a welcome and practical addition.

A couple of smaller but practical changes

The well-known five-working-day rule on postponing a meeting because a companion is unavailable is softened for cases that could end in dismissal, bringing established case law (Talon Engineering v Smith) into the Code itself.

NB: The EAT concluded that employers must not rigidly enforce the five-day statutory rescheduling limit if it prevents an employee from having their chosen trade union representative at a disciplinary hearing. The case highlighted that even justified dismissals for misconduct can be ruled procedurally unfair if employers act unreasonably by refusing to postpone a hearing, overriding the need to avoid “over-hasty” actions to manage workplace disruption. There was, however, commentary that there is a distinction for those employees who are clearly trying to prolong matters unnecessarily or acting in bad faith, and situations where the process has been going on too long.

ACAS is also explicit that an informal conversation can never, by itself, result in a formal warning – which should settle a question a lot of Managers get wrong in practice. An employer may confirm in writing what was discussed informally, but must not later treat that note as a formal warning. Any formal disciplinary action can only follow a formal meeting at which the worker had the right to be accompanied.

Finally, the language throughout has been softened. Words such as “allegations”, “penalty” and “first offence” have been reviewed with a view to a less adversarial tone – a small change, but one that reflects the whole thrust of the draft towards resolving concerns rather than prosecuting them.

What to do now

Nothing in the draft is final, and ACAS has said it will consider consultation responses before deciding whether, and how, to proceed. But given the scale of the changes, it is sensible to start preparing now.

We have already reviewed on behalf of our clients our disciplinary and grievance procedure wording, and we are satisfied that the existing wording meets the new Code’s requirements, although we may review and expand some wording next year, particularly around informal resolution, reasonable adjustments and mediation. 

An outline of previous known conversations and meetings will need to be stated within formal discipline and grievance meeting invitation letters in order to meet the new expectation to record the informal steps taken.

Check your suspension protocols, and be clear about who has authority to sign off a suspension and on what grounds.

Think about Manager training on handling informal (i) performance and attendance discussions and (ii) conflict/dispute handling conversations, and in all cases documenting them, especially given that this is about to carry much more legal weight.

If you would like to respond to the consultation, you can review the draft proposals and submit feedback directly via the ACAS Disciplinary and Grievance Consultation Page before the 23rd September 2026 deadline.

If you would like help training your Managers on either dealing with disciplines and dismissals (in line with the new Code requirements along with the implications of ordinary unfair dismissals after 6 months), as well as confidently dealing with conflict through informal resolution, please get in touch with Jackie Bolton

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice.