From April 2009, a new Acas code of practice on discipline and grievances – and a supplementary, non-statutory Acas guide – will replace the 2004 statutory dispute resolution procedures.

Under the new regime, an employer who makes a technical slip-up in the dismissal procedure will no longer automatically be liable for unfair dismissal. Likewise, the bar on claims for employees failing to make a grievance will be lifted. Unreasonable non-compliance with the code will land employers and employees with a potential 25% adjustment to compensation awards – reduced from the current 50% for any technical breach of the statutory procedures.

The 2004 procedures have not been popular. They have been described as ‘inappropriately inflexible and prescriptive’ (Gibbons Report) and have led to a deluge of satellite litigation.

This summer Acas issued a draft of its new code which, unless it is substantially revised, may receive a similar reaction. To be fair, this was never going to be an easy task. The draft reflects the inevitable tension between the parties’ desire for a code which is comprehensive, precise and certain, and Acas’s brief to produce a code which is concise, non-prescriptive and principles-based.

In its response to consultation on the proposals, the Employment Lawyers Association (ELA) welcomed the removal of the automatic unfairness and bar on employee claims referred to above, but was less enthusiastic about the draft code.

The ELA does not believe the 25% uplift should apply to failure to follow the many broad-brush statements and good practice suggestions in the code. For example, the code states that employers and employees ‘should do all that they can’ to resolve issues internally. What does this mean? Could employers be penalised for only complying with their statutory obligations and their own rules? Will employees be penalised if they do not turn a blind eye to procedural defects and minor unfairnesses?

Another concern is one of balance. The code states that it is designed to help employers, employees and their representatives, yet the vast majority of obligations are imposed on the employer. Employees could and should be required to attend hearings, raise timely grievances and lodge appeals when unhappy with the outcome. None of this is covered, but in other areas the code goes further than current law in giving employees new rights, such as the right to be accompanied at investigatory as well as formal meetings.

Although informal resolution is encouraged, the code fails to clearly delineate when a grievance becomes a formal complaint which must be dealt with under the formal procedure.

There are also problems with the code’s uncertain scope. It does not say what constitutes disciplinary matters nor whether the grievance procedure applies post-termination (for example, constructive dismissals). It does not address inter-related disciplinary and grievance issues or no-fault dismissals (for example, redundancies).

The non-statutory guide contains much of what is currently in the 2004 Acas code to which tribunals are currently required to refer when considering unfairness. However, under the new regime tribunals will be entitled to ignore the guide, in which case standards of fairness could be eroded. If they do judge employers’ and employees’ conduct against the guide, they may rightly feel the goalposts have been moved.

Consistency between the final versions of the code and guide would also be a welcome improvement. For example, the code states that employers’ disciplinary and grievance rules and procedures ‘should… be agreed wherever applicable with trade unions or employee representatives’. The guide, more reasonably, provides that rules and procedures should be developed ‘in consultation’ with employees.

Consultation on the drafts closed on 25 July and Acas is yet to respond. The ELA remains hopeful that these and its other concerns will be ironed out in the final versions. Without changes there is unlikely to be any significant decrease in litigation which, after all, is the chief ambition of this exercise.

Anna Henderson is a member of the Employment Lawyers Association working party on the Acas draft code.