The new draft Acas Code: what it means for informal resolution and mediation

Over the summer, Acas published its draft Code of Practice on disciplinary and grievance procedures. The consultation closes on 23 September and, whilst there may be some changes before the final version is published, I'd be surprised if the overall direction changes very much. The new Code is likely to come into effect in spring or summer 2027 in broadly its current form.

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What's changing in the draft Acas Code

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The Code itself isn't anything new. The Acas Code on disciplinary and grievance procedures has set the norm for how organisations deal with disciplinary and grievance for more than 25 years and forms the basis of most workplace policies and procedures. What's different is where this new version puts the emphasis.

The focus so far has largely been on how to run a fair formal process, with a brief nod to informal processes. This nod is reflected in most policies – a brief mention of informal procedures that is usually bypassed by employers who, with good reason, are worried about the ramifications of failing to follow a formal process. This new iteration places much more emphasis on informal processes. Employers must take this new emphasis seriously. The Acas Code isn't an aspirational document. It sets the norm. It is the baseline for workplace policies and procedures. Most critically, it is taken into account by Employment Tribunals. An unreasonable failure by an employer to comply with the Code can result in an uplift of up to 25% in compensation awarded to an employee. Equally, where an employee unreasonably fails to comply with the Code, compensation can be reduced by up to 25%.

The message in the draft Code is clear: before launching a formal process, employers should be thinking carefully about whether there's another way to resolve the issue.

Why informal resolution matters

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This aligns with what we've been saying for years. So many investigations have landed on my desk where my first thought has been: if only they'd talked this through earlier. Formal processes are sometimes necessary, but a leap to a formal process can make things much worse – as the new Acas Code makes clear. Used well, informal approaches can reduce the time, disruption and expense that formal procedures often bring. They can also preserve working relationships in a way that formal investigations frequently can't.

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Informal doesn't mean simple

While we applaud the shift to informal processes, we know that informal is not synonymous with simple. I've seen plenty of informal processes that have gone wrong and left people feeling worse than when they started. The fact that an issue is being dealt with informally doesn't mean it's being dealt with lightly. Nor does it mean turning a blind eye to poor behaviour. Informal approaches are often nuanced and require sensitivity, judgement and skill. Having a constructive conversation about a difficult issue can be every bit as challenging as running a formal process, and the draft Code strongly suggests training managers, workers and worker representatives so they have the skills and confidence to use informal approaches effectively.
Nor will informal resolution be appropriate in every situation. There'll always be cases where a formal process is the right response, particularly where serious allegations are involved. Employers in regulated environments may have particular challenges.

Mediation and facilitated conversations under the draft Code

A key change is likely to be a shift towards mediation and facilitated conversations. Under the draft Code, employers will be expected to record what informal steps were tried before a formal process, or why none were – and mediation and facilitated conversations are named as options throughout. We're passionate about the power of mediation, which is underused in the workplace. We're seeing mediation and facilitated conversations being used effectively in more and more scenarios, in ways that most employers haven't contemplated. However, we've also seen mediation go wrong: used at the wrong time, or handled badly, it can make matters worse. Knowing when mediation is likely to help, and having people with the skills and credibility to facilitate those conversations, will become increasingly important.

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What employers should be thinking about now

While the Code may change a little, the shift to informal processes is unlikely to change. Updating a policy will be the easy part. The bigger challenge will be making this part of everyday working life.

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In future newsletters, we'll be looking at some of the practical questions employers should be thinking about now:

• How will you train and support managers so that they can deal with concerns informally?
• How will you decide when an informal approach is appropriate?
• How will you build this into day-to-day working practices, rather than simply written into a policy?
• Do you know when mediation and facilitated conversations can be used effectively?
• Can you develop an internal cohort with the skills, credibility and perceived neutrality to facilitate conversations?
• When will an external mediator be the better option?

If you'd like to talk through how mediation could work in your organisation, I'm always happy to have an informal conversation – do get in touch.

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