21st April 2009
Sarah Veale asks whether a legalistic approach to employment relations is really the best route to good workplaces, and whether the new Acas Code of Practice offers an alternative approach.
Spring has come and with it comes new employment legislation – stricter penalties for breaches of the National Minimum Wage laws, an extended right for parents to request flexible working and a brand new ACAS Code on Grievance and Discipline. The collective groans of employers’ organisations can be heard as loud and clear as the dawn chorus.
If you look objectively at these new rights they make good sense. Paying the National Minimum Wage and providing some flexibility for working parents pays huge dividends in social terms, and benefits the economy, which in the long term benefits employers.
What tends to get forgotten is that employment legislation is only a “burden on business” if and when employers get things wrong, and only then if and when an employer gets caught. Most employers want to get things right and want their workforce to be productive and happy in their work.
That is why it is a great mistake to see the new ACAS Code as yet another burden, another piece of legal gobbledegook that needs to be interpreted by lawyers before it can be handled correctly by employers. The whole point of the ACAS Code, both in its new iteration and previously, is that it provides a series of nudges and suggestions for employers without being prescriptive. Good employers confidently conduct their businesses within the spirit of the Code anyway. For them, having written procedures for handling difficult situations, often customised to suit their own workplace, is so obviously necessary as to seem hardly worthy of report.
The principle underpinning the Code is that good employment relations systems mean good business and fewer visits to the Employment Tribunal. A large number of cases at the Employment Tribunals involve accusations of unfair dismissal. Many of those that are subsequently found to be unfair are found to be so because the employer has acted hastily, or not given the employee the chance to explain things. In cases of discrimination it is often obvious that the employee has not known what to do about a problem; a grievance procedure, notified to the employee when they start work and easily available to use will often allow for discussion and remedial action, sometimes by both parties, with no need to go to litigation.
The Code encourages alternative dispute resolution through mediation too – which is often particularly appropriate where there is systemic failure of some kind – a bullying culture for example, or unfair allocation of tasks.
It was re-written when the Government decided, in the face of universal demand, to repeal the short-lived statutory dismissal and grievance procedures. One of the key problems with those procedures was that they tried to force a soft issue (employment relations) into a hard legal straightjacket. Lawyers on both sides soon learned how to use the statutory procedures to trip the other party up – thus causing delays and worsening employment relations and any chance of keeping a person in a job. No doubt some lawyers are disappointed that this particular income stream has disappeared and are determined to find fault with the new Code instead.
It is in the best interests of employers and employees to see the Code as their friend, not as another wodge of legal text invented to trip them up, or to prevent them from seeking justice. It is true that it has inherited one feature from the statutory procedures – the ability to reduce or increase an award made when an employer has done wrong. That will be a matter of judgement only called if the dispute ever gets to the tribunal and the employer is found to have broken the law – and the judgement will be on the facts in each case. It is not necessary for employers to set up complicated procedures to avoid an uplift – just behave fairly, apply common sense and don’t rush to action – all much easier if you have a mature approach to constructive employment relations.
To make the code as successful as possible, we will need more confident employers, working with employment relations experts to use the code to build better workplaces, not more lawyers.
Sarah Veale is Head, Equality and Employment Rights Department, TUC and contributed to the drafting of the new code of practice. Sarah is also on the IPA executive committee.
For more information on the Acas Code of Practice visit
www.acas.org.uk
