However while the principles sound fair, the 'grey area' surrounding the correct procedures has certainly expanded: "It was quite prescriptive before and while it is good news for employers that they are doing away with it, the broader principles give more scope for error if you are not clear," says Rachael Heenan, employment partner at Beachcroft law firm. She believes that training for managers is key to ensuring a smooth transition between the old and new laws.
"The five main principles are things that should be dealt with promptly, and that is always an issue: in your day-to-day work, trying to deal with an internal investigation is not always top of the pile and unless HR has had training or lots of experience to deal with it, things can come unstuck," she reflects. "Although it is meant to be more flexible, the ideas in the Acas code can mean that an employer trying very hard to apply the letter of the law and comply with their obligations can find it harder because there is more flexibility; it gives more scope for arguments," says Balfour.
In addition, she believes the new code of practice, which allows employees a reasonable opportunity to present evidence, which includes bringing in witnesses at disciplinary hearings, will inevitably delay procedures: "It could turn proceedings into even more of a mini court-case," she says.
Anne-Marie Balfour, Speechly Bircham
John Ruddell, an employment law solicitor from Barlow Robbins, agrees: "The desired effect of the old statutory procedure was to get fewer claims but it has not worked – it has resulted in the exact opposite," he explains. "One of the main reasons is that it was quite prescriptive and there was a lot of argument over whether it actually applied in the first instance, which actually resulted in more Tribunal claims. But the purpose of this now is to make it more flexible and to lay down some guidelines, especially how to follow the process," he says.
However, Balfour sounds a note of caution: "Training is really important in the early stages to make sure everyone knows what the differences are this time around and also on the transitional provisions; there will be some grievances and dismissal situations that will span the two regimes, so make sure you know which one to work with," she says...
Shifting the deckchairs on the Titanic...