The biggest shake up of the Acas Code in 17 years
Acas has published a draft new Code of Practice on Disciplinary and Grievance Procedures for consultation. It is the first full rewrite since 2009 and, although nothing is final yet, there are some significant changes for HR.
Here are the headlines:
- Informal resolution moves into the Code
Currently, the encouragement to resolve issues informally sits outside the statutory Code itself. The draft changes that, with dedicated sections on employers and workers trying informal resolution before formal procedures begin.
That could give informal resolution greater legal significance when tribunals consider compliance with the Code and any potential uplift to compensation.
There is a practical change too. A disciplinary invitation would need to explain what informal steps have already been taken, or why none were appropriate. Workers raising formal grievances would face a similar expectation.
- Suspension gets a tougher test
The draft makes clear that suspension should only be used where necessary and in limited circumstances. That reflects the direction of existing case law but puts the message much more firmly into the Code: suspension should not be the automatic response to an allegation.
- More emphasis on equality, training and mediation
There are new standalone sections covering reasonable adjustments, manager training, and mediation/facilitated conversations. The latter is particularly notable: mediation is absent from the current Code, while the draft expressly contemplates pausing formal procedures to allow it to take place.
The draft also replaces “employee” with “worker” in most places, potentially broadening the Code’s reach, although the statutory 25% uplift remains available only in respect of employees.
But what about AI?
One notable omission is AI. The draft Code is silent on its use in grievance situations, despite AI-generated grievances and responses becoming a very real issue for HR teams.
Acas has not ignored the issue altogether. The consultation specifically asks whether the non-statutory guidance accompanying the Code should address the use of AI in disciplinary and grievance procedures. That is an area where HR practitioners may particularly want to have their say.
What should HR do now?
Don’t rewrite your policies yet. But start identifying where changes may eventually be needed, particularly around informal resolution, disciplinary and grievance templates, suspension, and manager training.
The consultation closes on 23 September 2026.
Part-time worker discrimination: why treating everyone the same may not be good enough
Treating everyone the same might sound like a generally safe HR approach. But a new Supreme Court decision is a useful reminder that sometimes, applying exactly the same rule to everyone can put part-time workers at a disadvantage.
In Augustine v Data Cars Ltd, Mr Augustine was a private hire driver who worked an average of 34.8 hours a week. Data Cars charged all drivers the same weekly fee of £148 to access its booking system, regardless of how many hours they worked. Mr Augustine compared himself with a full-time driver who worked more than 90 hours a week.
Both paid exactly the same fee. However, because Mr Augustine worked fewer hours, the fee cost him more for each hour he worked. This meant he took home proportionately less.
What does the law say?
The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 protect part-time workers from being treated less favourably because they work part-time.
Previously, the courts had suggested that working part-time had to be the only reason for the less favourable treatment.
The Supreme Court has now said that this is wrong. Part-time status does not have to be the only reason. It is enough if it is an important or effective reason for the treatment.
Importantly, employers can still defend a claim if they can objectively justify the treatment. Broadly, this means showing that there is a good business reason for it and that the approach taken is appropriate and necessary.
What does this mean for HR?
The key message from Augustine is not to assume that a policy is fair simply because everyone is treated in exactly the same way.
Fixed fees, benefits, or rules about qualifying for particular entitlements could all leave part-time workers worse off because they work fewer hours.
When reviewing policies and benefits, ask two questions: does this put part-time workers at a disadvantage because they work part-time? If it does, can we justify it?
The right to be accompanied: don’t ask, don’t get?
Imagine being called into a meeting at the end of your shift without being told what it is about. By the end of the meeting, you have been dismissed. Surely you should have been given the chance to bring someone with you?
Perhaps surprisingly, not necessarily.
That was the issue in Wolfe v Taka Mayfair Ltd. Mr Wolfe said that he was called into a meeting without warning, was not told what it was about and was dismissed at the end of it. He argued that his legal right to be accompanied had been breached because he had not been given the opportunity to bring anyone with him.
The Employment Appeal Tribunal (EAT) disagreed.
Under section 10 of the Employment Relations Act 1999, the legal right to be accompanied only applies where the worker asks to be accompanied. Mr Wolfe had not made a request, so there had been no breach of this particular right. This was the case even though he may not have realised what the meeting was about until it was too late to ask.
When does the right to be accompanied apply?
The legal right applies to certain disciplinary and grievance hearings, including relevant appeal hearings.
Where the right applies, the worker can choose to be accompanied by:
- a work colleague;
- a trade union official; or
- a trade union representative who has been appropriately certified or trained.
Importantly, the employer does not need to recognise the trade union, and the worker does not need to be a union member.
The companion can speak at the hearing, put forward the worker’s case and talk privately with them. However, they cannot answer questions on the worker’s behalf.
If the chosen companion cannot attend the proposed meeting, the worker can suggest another reasonable time, provided it is within five working days of the original date.
Sticking to the legal minimum is not necessarily good HR practice
This is the important practical lesson from Wolfe. The EAT confirmed that section 10 does not itself require an employer to tell an employee that a meeting is disciplinary or explain that they have a right to bring a companion. But that does not mean surprise disciplinary meetings are a good idea.
The Acas Code says that employees should be told in writing about the allegations against them and informed of their right to be accompanied before a disciplinary meeting. Following a fair procedure is also important if an employee is ultimately dismissed and later brings an unfair dismissal claim.
So, Wolfe explains the minimum required by the statutory right to be accompanied. It should not be treated as a guide to good HR practice.
Equal pay, but not just for sex? Government consults on a major rethink of pay discrimination
Equal pay has always been slightly different from other types of discrimination under UK equality law.
The Equality Act 2010 protects employees against discrimination because of a range of characteristics, including sex, race and disability. However, the specific equal pay rules only apply to differences in pay between men and women.
Under these rules, an employee can compare their pay with someone of the opposite sex who is doing equal work. This can include the same or similar work, work rated as equivalent, or work of equal value. If there is an unlawful difference in pay, an “equality clause” can effectively change the employee’s contractual terms to remove that difference.
The employer can only defend the claim if it can show that the difference in pay is because of a genuine “material factor” which is not sex.
What about race and disability?
There is currently no equivalent equal pay system for any other protected characteristic.
An employee who believes they are being paid less because of another protected characteristic (for example, race, sexual orientation or disability) can bring a discrimination claim. However, the legal rules and the remedies available are different.
The Government is now consulting on whether this should change, at least in respect of differences in pay referable to the protected characteristics of race and disability.
What is the Government proposing?
One of the most important proposals is to give employees experiencing race or disability pay discrimination similar rights to those bringing sex equal pay claims.
This could allow employees to compare their pay with colleagues doing the same or similar work, work rated as equivalent, or work of equal value.
Importantly, a tribunal could also have the power to change the employee’s contractual pay terms following a successful claim. This would mean that the tribunal could not only award compensation but also correct the discriminatory pay difference going forward.
That would be a major change.
What else is being considered?
There is an ongoing consultation which covers a wide range of other proposals, including:
- requiring employers to provide pay information in job adverts or before interview;
- strengthening requirements around equal pay audits and job evaluation schemes;
- bringing back statutory questionnaires for pay discrimination claims;
- creating a new Equal Pay Regulatory and Enforcement Unit with enforcement powers; and
- giving tribunals more flexibility to extend time limits in equal pay cases.
There are also proposals dealing with outsourcing and the use of hypothetical comparators in some circumstances.
The consultation closes on 27 October 2026.
For HR teams, these proposals are worth watching closely. If they become law, they could do much more than simply update the existing equal pay rules. They could significantly change how employers need to identify, explain and correct pay differences across their workforce.
Sexual harassment training: When does training become ‘stale’?
Most employers understand that sexual harassment training is important. But providing training once and then forgetting about it is unlikely to be enough.
The more useful question for HR is: is our training still effective?
This is particularly important because, from 30 October 2026, employers will be required to take “all reasonable steps” to prevent sexual harassment at work.
Taking all reasonable steps can also provide an employer with a defence where it would otherwise be legally responsible for harassment carried out by an employee or, from October 2026, a third party.
So, simply being able to show that employees received some training in the past may not be enough.
When can training become “stale”?
A useful case is Allay (UK) Ltd v Gehlen. The case involved racial harassment rather than sexual harassment, but the same principle is relevant.
The employer had provided equality and diversity training around two years before the harassment took place. However, the Employment Appeal Tribunal found that the training had become “stale”. The training had also been fairly brief and basic.
This does not mean that employers have to provide refresher training every two years. There is no fixed legal timetable.
Instead, employers need to consider whether their training remains effective and whether there are any other reasonable steps they should be taking to prevent harassment.
Watch out for warning signs
There may be signs that refresher training is needed. For example:
- inappropriate jokes or “banter” are becoming common;
- managers are not challenging inappropriate behaviour;
- employees do not know how to report concerns; or
- complaints or incidents suggest that employees have not understood the training.
It may also be sensible to refresh training when something significant changes within the organisation, such as rapid recruitment, new managers or different ways of working.
Managers may need additional training. They should understand what sexual harassment can look like, how to challenge inappropriate behaviour and what to do if an employee raises a concern.
What should HR take from this?
There is no simple rule about how often sexual harassment training should be repeated.
Instead of asking “When did we last provide training?”, HR should be asking “Is our training still working?”
If the answer is no, or there are warning signs that standards are slipping, it may be time for a refresher.
Third-party harassment is coming back: are you ready?
What happens if a customer harasses one of your employees?
The customer does not work for you, and you may have had no idea that the harassment was going to happen. Could your organisation still be legally responsible?
From 30 October 2026, potentially yes.
New rules will protect employees from harassment by third parties. This means people who are not employed by the organisation, such as customers, clients, contractors, service users or other business contacts.
An employer could face a claim if an employee is harassed by a third party in the course of their employment and the employer failed to take all reasonable steps to prevent it.
One incident could be enough
This is not the first time that UK discrimination law has dealt with third-party harassment.
Under an older version of the law, an employer generally needed to know about two previous incidents of harassment before it could become liable. This was sometimes known as the “three strikes” rule. Those provisions were repealed in 2013.
The new rules are different. There is no three strikes rule, and a single incident could potentially result in a claim.
Where could the risk arise?
HR teams therefore need to think beyond the behaviour of their own employees.
Third-party harassment may be an obvious risk in areas such as hospitality, retail and healthcare, where employees regularly deal with members of the public.
But it can arise in many other situations. Employees might deal with contractors, attend conferences, entertain clients, visit customers’ homes or work alongside people employed by other organisations.
Employers should identify where these risks could arise and consider what reasonable steps they can take to reduce them.
What could employers do?
Depending on the workplace and the risks involved, reasonable steps might include:
- telling customers and service users that harassment of staff will not be tolerated;
- including appropriate clauses in contracts with clients and contractors;
- requiring contractors to deal with individuals who behave inappropriately;
- avoiding lone working where there is a higher risk of harassment;
- providing alarms or code words for employees working in higher-risk situations; and
- making sure employees know they should report harassment by customers and other third parties.
Employers cannot control everything a customer, client or contractor might do. But that does not mean they can ignore the risk.
For HR, the message is clear: from October, preventing harassment will mean looking beyond your own workforce and thinking about everyone your employees come into contact with at work.
Training cost clawbacks: when does repayment become an unlawful restraint?
Training repayment agreements are common. An employer pays for an employee’s training, and, in return, the employee agrees to repay some or all of the cost if they leave within a certain period.
But there are limits on what employers can recover.
The recent Court of Appeal decision in Geeks Ltd v Watts shows that a repayment requirement can sometimes be so significant that it unfairly restricts an employee’s ability to leave their job.
An £8,108 bill on an £18,000 salary
Mr Watts joined Geeks as a trainee engineer earning £18,000 a year. His agreement said that he owed £8,108 in training costs. He would have to repay this if he left within his first 12 months, with the amount then gradually reducing over the following 18 months.
After eight months, Mr Watts resigned to take a new job paying £30,000. Geeks asked him to repay the £8,108.
The Court of Appeal decided that the repayment clause was an unreasonable restraint of trade and could not be enforced.
The agreement did not actually say that Mr Watts was prevented from working elsewhere. However, the amount he would have to repay was so significant that, in practice, it could discourage him from leaving.
What should employers check?
The decision gives HR teams some useful questions to ask when reviewing training repayment agreements:
- Are you recovering genuine training costs? In Geeks, the calculation included mentoring costs and the employee’s own salaried study time.
- Is the repayment reasonable compared with salary? The size of the debt compared with Mr Watts’ relatively low salary was important.
- Does the amount reduce over time? Mr Watts received no reduction at all during his first year.
- When does repayment apply? The clause applied to almost every type of departure except redundancy.
- Did the employee have a proper opportunity to consider the agreement? How and when the agreement was signed can also be relevant.
Two possible problems with enforceability
Training repayment clauses can potentially be challenged in two different ways.
First, a clause might be an unlawful penalty if the financial consequence imposed on the employee is out of proportion to the employer’s legitimate interest in protecting its investment.
Second, as in Geeks, it might be an unreasonable restraint of trade because the financial cost of leaving makes it too difficult for the employee to move to another job.
This does not mean employers should stop using training repayment agreements. But they should be carefully drafted.
For HR, the key is to make sure that repayment reflects genuine costs and that the amount is reasonable, proportionate and reduces fairly over time.
Belief discrimination: where are we now?
The recent Employment Appeal Tribunal decision in University of Bristol v Miller is a useful reminder of how employers should deal with conduct linked to an employee’s protected religion or belief.
The key point is that employers need to separate the belief itself, the way the employee expresses it, and any genuinely objectionable conduct.
What did Higgs tell us?
In Higgs v Farmor’s School, the Court of Appeal confirmed that an employer may discriminate if it treats an employee less favourably because of something they have said or done which is closely connected to a protected belief.
This is often described as the manifestation of the belief.
An employer can still take action if the way the belief is expressed is sufficiently objectionable. But the employer’s response must be justified.
In practice, that means asking two questions:
- Is the employer trying to protect a legitimate aim?
- Is the action being taken proportionate?
The more serious the action, particularly dismissal, the more carefully that proportionality needs to be considered.
What happened in Miller?
Dr Miller was a Professor of Political Sociology at the University of Bristol. He was dismissed after making public comments expressing anti-Zionist beliefs and strongly criticising named Jewish student groups.
The tribunal found that his particular anti-Zionist belief was protected under the Equality Act 2010.
It also found that his dismissal amounted to direct belief discrimination.
Importantly, this did not mean that everything Dr Miller had said was protected from disciplinary action. Some of his language towards named student groups went beyond expressing his protected belief and could properly be treated as misconduct.
However, his dismissal was based substantially on comments which were a manifestation of his protected belief. The University therefore had to justify restricting that expression. It could not do so because dismissal was considered disproportionate when a lesser sanction could have been used. The EAT upheld that central finding.
What should HR do?
The lesson from Miller is not that employees can say anything they like because it is linked to a protected belief.
Instead, HR should look carefully at exactly what has been said or done.
Ask whether the conduct is closely connected to a protected belief. Then separate that from any inappropriate way in which the belief has been expressed.
Finally, consider why disciplinary action is needed and whether the proposed sanction is proportionate.
After Higgs and Miller, proportionality should be a key part of the decision-making process whenever alleged misconduct is linked to a protected belief.
When 25% becomes 2.5%: a useful reminder on Acas Code uplifts
If an employer fails to follow the Acas Code when dealing with a disciplinary or grievance matter, an employment tribunal can sometimes increase the compensation awarded to an employee by up to 25%.
But 25% is the maximum. It is not an automatic increase.
The recent case of Sheikholeslami v University of Edinburgh is a useful example of how tribunals decide what percentage to award.
From 25% to 2.5%
In Sheikholeslami, the tribunal found serious problems with the employer’s procedure. It initially decided that a 25% uplift was appropriate.
However, the employee’s compensation was eventually calculated at more than £1.7 million. Applying a 25% uplift to such a large award would have resulted in a very significant additional sum.
The tribunal therefore looked again at whether 25% was appropriate and reduced the uplift to 2.5%.
The Employment Appeal Tribunal agreed that it was entitled to do this. Tribunals can look at the overall financial result when deciding what uplift is “just and equitable”, or fair in the circumstances.
When can an uplift apply?
The power to increase compensation comes from section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992.
The Acas Code applies to disciplinary situations, including misconduct and poor performance, as well as grievances. It does not apply to redundancy dismissals or the expiry of fixed-term contracts.
Before awarding an uplift, a tribunal should consider:
- Did the Acas Code apply?
- Did the employer fail to follow it?
- Was that failure unreasonable?
- If so, what percentage uplift would be fair?
Serious procedural failures can still result in the full 25% uplift. For example, tribunals have awarded 25% where a disciplinary outcome was effectively decided in advance or where an employer failed to hold a disciplinary hearing at all.
What should HR do?
From January 2027, the compensation cap for ordinary unfair dismissal will be removed. This means that compensation awards, and potentially Acas Code uplifts, could become more significant.
Sheikholeslami shows that tribunals can reduce the percentage uplift where applying a higher percentage would produce a disproportionate financial result. But employers should not rely on that happening. The best way to reduce the risk remains to follow a fair process: investigate properly, explain the allegations, hold a genuine hearing, allow the employee to be accompanied, keep an open mind, and offer a right of appeal.
And finally…
The Australian owner of a goat with a serious attitude problem recently posted a hilarious job ad on a local online ‘Goat Group’, explaining why the goat’s workplace relationships had fundamentally broken down. The goat, named Ben, was employed as a weed-whacker and tethered lawnmower. However, the advert explained that he had elevated himself to the position of Chief Executive Officer of the goat herd, a position which was neither advertised nor offered to him. After issues with his ‘intimidating’ management style, his owner was looking to remove him from his position, citing “irreconcilable differences”. Importantly, from the point of view of fairness, this decision had been reached only after several disciplinary meetings and performance reviews.
As a result of his owner’s tongue-in-cheek job advert, Ben received several new job offers