Sometimes it appears that life is all about regrets. That ill-advised ‘Law Society’ tattoo on qualification, the scurrilous suggestion that the little girl singing at the Olympic opening ceremony was miming, and indeed the rude comments many of us may have made about the likely spectacle Britain will present to the world in 2012. Indeed, I am sure that by then we will collectively have come up with more than the Red Arrows, Tom Jones singing ‘Delilah’ and a ‘Carry On Up the Podium’ theme to delight and entertain the world.

And so it must be in some parts of government, as Employment Bill number 117 (known to its friends as the Employment Simplification Bill) continues to wind its lonely course back through the Commons for a further reading. For when it is passed (expected to be April 2009), that great experiment of the statutory disciplinary and grievance procedures will reach its ill-fated end and with it the hopes of a bright new dawn in which such internal procedures might actually of themselves force reconciliation between employees and employers.

But while I for one will miss the chance of striving to be employment law’s answer to Tom Stoppard (raising a grievance within a grievance), most of those in practice are agreed that the repeal of the procedures set out in sections 29 to 33 (and schedules 2 to 4) of the Employment Act 2002 is probably for the best. Often confusing, it is true to say that most parties have struggled with the current laws.

Following the line in Shergold v Fieldway Medical Centre [2006] IRLR 76, almost anything in writing could be thought to amount to a grievance, and it has become commonplace to find employees raising both grievances about a disciplinary decision (when they should appeal) and new grievances within an appeal. Given this and the potential 50% uplift or downshift in compensation, it is true to say many have felt aggrieved by a system often seen as unworkable.

So will 117 make things any better? Now that we have not only the draft bill but also the draft code and the Law Society’s Employment Law Committee response, now is a good time to take stock. And the real answer is better than what – the present system or the one before it?

On the one hand, the present rules will thankfully be replaced, but on the other there is concern that the new process will not be much better. The mainstay of the new rules will be that employers and employees do not unreasonably fail to comply with a ‘relevant code of practice’. Again, the sanction if they fail to do so is not only one of liability but also one of compensation, as the rules provide a penalty for failure again by way of an uplift/downshift in compensation (this time by no more than 25%).

While a first reaction is that this could be an improvement on what we currently have, the concerns expressed have been not only practical but also more philosophical. First came the question of who should produce the relevant code and what its content should be. It is no secret that ACAS, to whom this particular poisoned chalice passed, was more than uncomfortable with being required to produce a code that was to have such a direct impact on any proceedings. Then, after the first draft code was circulated for consultation in May this year, came the second concern, perhaps most succinctly expressed in the words of the Law Society itself in its August 2008 response to the draft code: ‘We consider that ACAS has been given the unenviable task of drafting a code which must serve two, arguably conflicting, purposes – liability… and uplift.’

Both questions are a concern. ACAS should of course be praised for the great effort that has been put into this task and its decision to produce what it describes as a ‘shorter code’ that is ‘concise and principles-based’. Indeed, on first reading this does seem to make more sense than the previous step-based effort, by moving employers away from a rulebook approach. The difficulty is that, while this has worked well in other fields where there is what has been described as a ‘shared understanding’, the principles of employment law and the manner of translating them into practice is perhaps too much art than science for it to be defined in this manner. Like mercury, the shape of an employment problem shifts so constantly that no two practitioners could ever design the exact same process to resolve either a disciplinary or grievance process. Indeed, this is perhaps the reason the 1970s legislators selected the subjective term of a ‘fair' dismissal rather than aiming for a more objective ‘correct’ dismissal.

At the same time, the question posed by the move away from a code designed as guidance (section 199 TULCRA 1992) – albeit one that is already admissible in evidence (section 207 TULCRA) – towards one which will also be considered in uplifting/downshifting compensation (the new section 207A) is a difficult one to resolve. For while its first role (liability) suggests the code should be long and detailed to help employers/employees get things right, the second role (quantum) seems to require a much simpler code to assist in deciding on any uplift/downshift, and certainly a tribunal would need to consider the code twice if a claim succeeds. This has led to the Law Society calling for a two-part code, and others arguing for a move away from uplift/downshifting awards altogether on the basis that the code’s impact on liability would be sufficient. All of this argument is before any detailed assessment of the provisions of the code is made.

It would, of course, be wrong to suggest that the exact provisions of the code are always off the mark. Certainly it must be said that ACAS is one of the few (if not the only) bodies that could have so well-expressed many of the core principles of the disciplinary and grievance process. And although revisions and changes are needed, it is fair to say that, as a guide, few might doubt its value to employers and employees alike. However, as a document that is to have such an important twin effect, it is hard to disagree with the Law Society’s conclusion (and that of other commentators) that the draft code is fundamentally flawed.

Indeed, the real question must therefore be whether the very process proposed by the new section 207(A) is fundamentally flawed and whether employers or employees are actually served by it. The purpose of all of this law must surely be to create a ‘fair’ system so that employers and employees can resolve the disputes as far as possible without needing recourse to an expensive and time-consuming court/tribunal process. Where the penalties place such dual pressure on the process, only a perfectly drafted code would ever do, and perhaps the production of such a code may be just too Olympian in nature in the time available, or even by 2012.

While it may already be too late, the backbone of this key process must surely be considered afresh if at all possible. If the current process is replaced by another that is similarly flawed, we may well have something else to regret in the New Year and it may be too much to expect Mr Gibbons or the Law Society’s Employment Law Committee to ride to the rescue a second time.

Indeed, if I hadn’t had the Society’s logo put in such a hard-to-reach place, the committee’s report might have been enough to make me rethink that visit to the tattoo removal clinic.