What should we do about the ACAS Code of Practice on Discipline at work?

This is a long blog post on a niche blog for people who care about workplace trade union organisation and the representation of workers so if you’re looking for amusing pictures of cats (or a contribution to the increasingly tedious and entirely unnecessary election for Labour Party leader provoked by the risible challenge of the utterly unconvincing Owen Smith) then look elsewhere. I want to think about what experienced trade union activists should be doing to shape Labour Party policy on workplace issues, knowing that the official structures which are supposed to enable this interaction are ossified beyond repair.

More than twenty years ago, as a (relatively) young Branch Secretary who was often representing workers at the Croydon tribunals, I was invited to the party to mark twenty five years of the London Region of the Advisory, Conciliation and Arbitration Service (ACAS). Since I was not then (as I am not now) in the exalted position of being sent by UNISON to the annual gathering of the Trades Union Congress (TUC) I wasn’t used to an event with free wine and got a little inebriated.

Although I knew that ACAS was part of the state apparatus and that the state exists to perpetuate the conditions for profitable capital accumulation I nevertheless knew that ACAS was a not unhelpful creature for workers, and not only because in those days there were many admirable Conciliation Officers who were themselves good trade unionists. ACAS was part of the institutionalisation of the balance of class forces in the 1970s and of the attempt to divert the otherwise uncontrolled (and "unofficial") workplace power of organised labour in the workplace into formal channels, which neither Barbara Castle with “In Place of Strife” nor the Heath Government, with its Industrial Relations Act , could achieve, but the Wilson/Callaghan Government achieved by establishing novel statutory rights for workers, to be enforced by tribunals which would be guided by Codes of Practice produced by ACAS.

In those days the ACAS Code of Practice on Discipline at work was a very useful tool in representing members at employment tribunals – and by extension in internal disciplinary hearings. Paragraph 3 specified that workers should know what they might be disciplined for and paragraph 8 emphasised that it was particularly important that workers knew in advance what might count as gross misconduct. I cannot count how many times I referred to those paragraphs in the 1990s to fend off employers attacking individual workers. The latest version of the ACAS Code of Practice on Discipline bears the marks of decades of restricting “red tape” and is of far less use. Even this attenuated code does not apply to sickness dismissals, which are increasingly common.

Employers in 2016 have far too much discretion in how they treat employees and - as trade unions have retreated from a proactive approach to tribunal representation to a defensive approach which is motivated more by a desire to limit our professional indemnity premiums than by a commitment to members’ rights – we cannot rely upon the official structures of our movement to do much to try to police the conduct of employers (just at the same time as our unofficial strength has been limited by declining membership density).

When I was able to represent UNISON members at employment tribunals I took the approach of taking to the tribunal every case where one of our members had been dismissed against their will by our main employer. This proactive approach could sometimes get UNISON into trouble (although not with the Council who never got costs awarded against us in any case I was dealing with).

The knowledge that we would take the most marginal cases to the tribunal kept the employer on their toes when it came to complying with their procedures in every case. Now that employers realise that trade unions won’t take marginal cases to tribunal they are really under very little pressure to comply with their own procedures in such cases, even where those procedures are collective agreements incorporated into the contracts of employment of their employees. Since we now have a growing cohort of full time officials who have never led a strike and never taken a case to an employment tribunal, and are trained to believe that the purpose of a trade union (other than to recruit members) is simply to ensure that our members receive their legal rights, we need to think a bit about how to increase those rights if we are to give purpose to the future working lives of our own union employees.

The approach to trade unionism which sees it as about enforcing legal rights is utterly worthless to the majority of UNISON members who work for public sector employers who recognise trade unions, where any UNISON branch worth our salt will have ensured that our members enjoy rights through contractual procedures which exceed any statutory minimum. It is also of little value to the growing minority of our members working in the barely regulated private sector (whose legal rights are often so minimal as to be barely worth enforcing). Our legal rights (as part of the superstructure of society) recede as our organised strength is dissipated in the workplace (the economic base).

The Labour Party’s Workplace 2020 consultation invites us to say what we think should be done – and I think we should be proposing a return to a far more prescriptive ACAS Code of Practice with greater statutory force – perhaps there should be a statutory minimum disciplinary procedure which applies in the absence of an alternative contractually agreed procedure (and sets a floor for the rights of workers below which an alternative contractual procedure cannot go)? (I’m suggesting something much more than applied briefly in the last decade).

Such a procedure could also cover sickness (and capability) dismissals as well as conduct dismissals, and dismissals which occur after an employer has failed to follow the minimum requirements of a statutory procedure could be deemed automatically unfair (perhaps with a guaranteed minimum level of compensation in such cases). If the introduction of such a statutory minimum procedure accompanied (as it should) the introduction of employment rights from day one then it should probably include – or also be accompanied by – a statutory minimum procedure governing probation periods and probationary dismissals.

I don’t want to leave the business of responding to Workplace 2020 to the official structures of our movement. I think that those of us who have been at work in the workplace over the last generation of retreats and defeats should be thinking through and spelling out what we want to change in order that our children should have a better working life. I am thinking of drafting a model disciplinary procedure to be given statutory force if and when we get a Labour Government worth having.

Am I alone in wanting to do this?