Employers have become increasingly reliant on formal process. ACAS appears to think so too and is seeking to change this with its draft updated Code of Practice on Disciplinary and Grievance Procedures. Tessa Hickey asks whether employers will be ready and able to make that transition.
Employers have spent years being told that the safest answer to workplace conflict is process.
Investigate.
Document.
Escalate.
Review.
(And if in doubt, investigate again.)
Now ACAS appears to be nudging employers in a different direction.
Its draft updated Code of Practice on disciplinary and grievance procedures (the draft Code), published for consultation on 30 July, places much greater emphasis on informal resolution and early intervention. On the face of it, that sounds entirely sensible and, if successful in reducing cases that proceed to litigation, could potentially assist in reducing the significant employment tribunal listings backlog.
However, the difficulty is that informal resolution relies on something many organisations struggle with: confident managers making sensible decisions in real time.
That is where the theory may collide with reality for many employers. It is easy to say that concerns should be addressed informally where appropriate. It is rather harder to decide, in the middle of a live dispute, whether something is genuinely suitable for informal resolution or whether it is about to become tomorrow’s formal grievance or, indeed, a litigated employment tribunal claim.
However, if adopted in its current form, this is exactly what the draft Code will require; informal resolution will become part of the statutory Code as opposed to being almost a prequel, simply mentioned in the Foreword. Therefore, a failure to attempt informal resolution will be considered as part of the potential 25% compensation uplift in successful employment tribunal claims.
Other key changes
The scope of the Code is widened in the draft to cover all workers, rather than just employees, which will create an additional operational responsibility for employers.
In relation to suspensions, the draft Code reinforces a point that tribunals have been making for years: suspension is a serious step, not merely a ‘neutral’ administrative reflex, and must be used in only limited circumstances where it is ‘necessary’.
There is nothing controversial about that proposition. One difficulty is that ‘consider alternatives’ sounds much easier in the draft Code / a policy than it does in a real workplace, where managers are balancing risk, employee relations and the possibility that they may be criticised whichever option they choose
Is informal resolution ‘scary’ for employers?
One interesting question the draft Code prompts is to consider why many employers default to formal process in the first place. Most managers do not choose investigation and grievance procedures because they enjoy paperwork. They choose them because procedure feels safer. A documented process, with various individuals involved in a framework of roles, creates a sense of protection if the decision is later challenged. An informal conversation, however sensible at the time, can feel considerably riskier when somebody subsequently says: ‘That is not how I remember it.’
Our concern is that many employers will read the draft Code and agree with every word of it. Then a difficult workplace issue will arise on a Monday morning, somebody will suggest an investigation and a suspension, and everyone around the table will feel considerably safer following the existing process. That reaction may not be entirely rational, but it is understandable. Formality creates a sense of security, particularly when the alternative depends upon individual managers exercising judgment in circumstances which are rarely straightforward.
That does not mean the draft Code is wrong or unwelcome. It means that the real challenge is unlikely to be in rewriting policies. It will be giving managers enough confidence to exercise meaningful judgement rather than simply ticking the ‘informal resolution attempted’ box before moving swiftly on to the familiar territory of the formal procedural path.
It may be that the draft Code is not accepted in full; however, it seems likely that this key change will be incorporated into the new Code of Practice.
Whether workplaces are ready for that leap in practice is another question.
If you'd like guidance on formal processes, please contact our expert employment law solicitors.