Acas Code under the spotlight

In March 2012, the coalition government announced a call for evidence about the effectiveness of the Acas Code. In common with the rest of the government’s Employment Law Review for 2012, the call for evidence is framed as a search for opportunities to reduce “burdens on business”. In particular, the Department for Business, Information and Skills (BIS) claims that some employers have the following concerns about the Code:

• a suggestion that its language is more suited to resolving disciplinary (conduct) issues than “capability” or “performance” issues, and that core requirements of the Code (for example, the need to conduct a fact-finding investigation) are “backwards-looking” and supposedly “less relevant” to a “forward-looking performance management process”;

• a suggestion that all the steps in the Code might not be practicable for smaller employers;

• a suggestion that it is not always reasonable to expect a small employer to find a manager not previously involved in the case to hear any appeal; and

• a suggestion that it is not always reasonable to expect a small employer to issue a “series of written warnings” before dismissing a worker for poor performance”.

There is no evidence to suggest that these criticisms of the Code are justified. In particular, the Code explicitly states: “Employment tribunals will take the size and resources of an employer into account when deciding on relevant cases and it may sometimes not be practicable for all employers to take all of the steps set out in this Code” (Code, paragraph 5).