UK: Disciplinary and grievance policies – Acas consultation on draft revised Code, tribunal rulings and guardrails for AI use

Acas has published a new draft Code of Practice on Disciplinary and Grievance Procedures for consultation until 23 September 2026, with the expectation (see the Acas blog post here) that it will come into effect in 2027.  The key change to note is the increased emphasis on exploring informal resolution and, where appropriate, considering mediation for both disciplinary and grievance concerns. While these are mentioned as best practice options within the Foreword to the current Code, in the revised draft they have been expanded and moved within the Code itself.  This would mean that an unreasonable failure (by either party) to attempt informal resolution could for the first time lead to an adjustment of up to 25% to compensation awarded in a tribunal claim.  The draft Code provides that disciplinary invitation and grievance letters should state what informal steps have been taken or the reason why none have been taken - the draft Code does acknowledge that an informal approach will not be appropriate in every situation.  It states that formal processes should be used from the start for concerns about gross misconduct or other serious issues that could result in dismissal, or grievances about serious misconduct. 

Other changes include:

• employees are encouraged to keep grievances short and to set out their desired outcome if possible;
• detail is added on when it will be appropriate to suspend during a disciplinary process; 
• the need to make reasonable adjustments for disabled employees, including at informal stages, is set out.  The draft Code acknowledges that there is no statutory right to be accompanied during informal resolution processes, but recommends that such requests should be considered and notes that allowing a companion could be a reasonable adjustment for a disabled employee. 

Given the increasing use of AI to produce lengthy grievances, employers will welcome the revised Code's encouragement to workers to keep grievances short and to include their desired outcome.  Both suggestions may improve the chances of resolving matters without a lengthy formal process, and there is no need for employers to wait for the finalised code before adding similar provisions to their grievance procedures.  Indeed, it may be prudent to refresh policies more generally to reflect employees' use of AI, including reminding staff that uploading documents to a public AI tool in order to draft a grievance or other disciplinary/grievance documents could involve a breach of confidentiality and data protection law (itself a disciplinary matter).  Employers could also consider adding provisions aimed at keeping grievances manageable, for example by suggesting an expected maximum length or using a template format.  It would also be prudent for grievance procedures to provide for the option of a scoping meeting early on to agree a list of the specific matters to be investigated and desired outcomes.  Notably the Acas consultation questionnaire seeks views on whether the Code or non-statutory guidance should specifically address any benefits, risks or practical issues arising from the use of AI. 

The consultation also notes that the government is currently reviewing the statutory right to be accompanied, and any recommendations from that review will be considered when finalising the Code. This review is expected to end in early January 2027.  It will be interesting to see whether the review recommends changes to remedy the gap in protection highlighted by the EAT's recent ruling in Wolfe v Taka Mayfair. This held that the statutory right to a companion is conditional on the employee having made a reasonable request to be accompanied, whether or not the employer has made them aware in advance of the nature of the meeting and the possibility of exercising the right.  (In this case, the employer had failed to explain the nature or purpose of what was in fact a disciplinary meeting, so that the employee did not appreciate that the right might apply;  his failure to make a request meant that the right was simply not engaged. Although the employer's conduct would be relevant to an unfair dismissal claim, the claimant here lacked the required qualifying service.) 

The need for a clear distinction between, and appropriate use of, fact-finding meetings, informal resolution and formal processes has recently been emphasised by the tragic death of civil servant Chloe Moffat.  The coroner held that the Treasury contributed to her suicide by raising a misconduct allegation at an informal meeting, which as a result was held without advance notice or the right to a companion and which left her unaware that the potential penalty was only a written warning and not the dismissal she feared.  The coroner was concerned by the employer's common use of informal fact-finding meetings and indicated that a prevention of future deaths report would be issued to the employer and to Acas;  Acas has confirmed that it will consider any recommendations made.  The Code makes clear that the potential sanction for misconduct should be confirmed prior to a formal disciplinary meeting;  this case may prompt discussion as to whether a similar requirement should be imposed prior to a fact-finding meeting with the employee concerned, and similarly that it should be clearly communicated to the employee prior to an informal resolution process that this will not by itself give rise to disciplinary action (and, perhaps, that it will be ended should it become clear that a formal process should be adopted instead).   There is obviously also a need for employers to ensure employees are appropriately supported throughout the process, particularly where they are known to be vulnerable.  Employers may already be planning a refresher for managers in preparation for the reduction in the qualifying service for unfair dismissal from January 2027;  in light of this case it would be prudent to include a review of the use of informal and formal processes and the need for appropriate sensitivity and support.

A notable omission from the revised draft is much in the way of helpful guidance on managing performance and dismissal in executive roles.  Employers concerned by the forthcoming removal of the cap on compensation for unfair dismissal may have been hoping that a revised draft would include something more specific on the relevance of seniority or high earnings to the requirements of a fair procedure, for example endorsing a shorter poor performance process for senior executives or addressing when a loss of board confidence in the individual due to performance can instead be treated as 'some other substantial reason' for dismissal.  The possibility of guidance on this issue was floated in commentary on the government-stakeholder discussions in relation to the unfair dismissal reforms earlier this year. However, the only addition to the draft Code is a reference to the need to comply with other legal requirements alongside the Code, "for example, the UK Market Abuse Regulation in the case of senior employees or company directors" (which imposes obligations to disclose inside information), and that in such cases the Code should still be followed "to the extent reasonably possible".

One final point worth noting is that the draft refers throughout to disciplinary and grievance processes for 'workers', instead of the reference to 'employees' in the current Code.  Ostensibly this would widen the scope of the Code and encourage individuals with worker status to seek compliance with the Code, although (as noted in the consultation questionnaire) in practice the legal remedy for breach would remain available only to employees. 

Employers may need to update their policies and refresh manager training once the final revised Code is published next year.  In the meantime, it may be worth considering amendments now, to guide the use of AI, as well as planning ahead for training to upskill managers in informal resolution.  Employers may also want to think through whether and how workplace or external mediation might be made available.