Thankfully, the statutory procedures were abolished with effect from 6 April 2009 – although there are transitional measures to trap the unwary!
On 6 April 2009, a new ACAS Code of Practice on Disciplinary and Grievance Procedures came into force. If an employer or employee unreasonably fails to follow the guidance set out in the Code, the Tribunal can increase or reduce, as appropriate, any award it has made by up to 25%.
In the first draft of the Code published by ACAS and sent out for consultation, there was the following sentence: “Employers and employees should do all that they can to resolve disciplinary and grievance issues in the workplace.” Many commentators took the view that this would effectively force parties to mediate workplace disputes and, if they unreasonably failed to do so, to suffer the consequences of a 25% increase/decrease in compensation.
It is one of the central tenets of mediation that the process is voluntary – someone coming to mediation because he/she wants to is much more likely to settle the dispute than someone forced to attend.
ACAS reacted to responses to the consultation and the sentence quoted above was omitted from the final version of the Code of Practice. Instead, it has been relegated to the Foreword to the Code of Practice. The relevant part now reads:
“Employers and employees should always seek to resolve disciplinary and grievance issues in the workplace. Where this is not possible, employers and employees should consider using an independent third party to help resolve the problem. The third party need not come from outside the organisation but could be an internal mediator, so long as they are not involved in the disciplinary or grievance issue. In some cases, an external mediator might be appropriate.”
The Foreword does not form part of the statutory Code of Practice. Accordingly, failure to comply with it does not have any adverse consequences as far as compensation is concerned.
It follows that, whilst parties are strongly encouraged to try to resolve workplace disputes by mediation, there is no legal duty to do so. Having said that, solicitors are under a duty to act in the best interests of their clients – in my view, the solicitor who fails to suggest and promote workplace mediation in appropriate cases is failing to comply with his/her duty to the client. For anyone who has been involved in workplace mediation, the advantages of mediation over disciplinary/grievance procedures and the litigation that often follows are obvious.
Partner and Head of Employment, Darbys Solicitors LLP