Preview: Fairness at Work?

FAIRNESS AT WORK? THE DISCIPLINARY AND GRIEVANCE PROVISIONS OF THE 1999 EMPLOYMENT RELATIONS ACT

BY MIKE CLANCY AND ROGER SEIFERT

Mike Clancy is a National Officer for the EMA. He is responsible for negotiations and the representation of members in a number of major electricity companies. He is an Executive Committee member of the Institute of Employment Rights and an Employment Tribunal panel member, adjudicating on claims across a range of employment related matters.

Roger Seifert is Professor of Industrial Relations and Head of Department in the Department of Human Resource Management and Industrial Relations at Keele. He is the author of several books including ones on industrial relations in education, health, local government and mining.

This publication, like all publications of the Institute, represents not the collective views of the Institute but only the views of the authors. The responsibility of the Institute is limited to approving its publication as worthy of consideration within the labour movement.

ISBN 1 873271 83 2 November 2000 published by the Institute of Employment Rights 177 Abbeville Road London SW4 9RL 020 7498 6919 e-mail ier@gn.apc.org www.ier.org.uk printed by Upstream (TU) 020 7207 1560 ÂŁ6.50 for trade unions and students ÂŁ20 others THE

INSTITUTE OF

EMPLOYMENT RIGHTS

fairness at work? the disciplinary and grievance provisions of the 1999 Employment Relations Act

by Mike Clancy and

executive summary

Roger Seifert

i

contents

executive summary

iv

CHAPTER 1

work and fairness power relations at work the search for natural justice frontiers of control

1 1 4 5

CHAPTER 2

fairness at work: New Labour’s perspective the individual at work the nature of representation

9 9 11

CHAPTER 3

the nature of workplace discipline and disciplinary procedures the disciplinary and grievance provisions of the 1999 ERA

the extent of workplace grievance procedures

ii

13 14

CHAPTER 4

the dynamics of workplace grievances and grievance procedures

19

the nature of workplace rules promoting best practices through procedures

19 21

CHAPTER 5

rights to representation, reasonableness and remedy prior to the ERA representation reasonableness remedies conclusion

24 24 27 30 31

CHAPTER 6

the legal basis of workplace procedures the right to be accompanied under the ERA who can accompany and when?

32 35 37

CHAPTER 7

the ACAS Code of Practice on Disciplinary and Grievance Procedures disciplinary procedures grievance procedures “reasonable accompaniment” what is a grievance? accompaniment at the informal stage the meaning of “accompaniment”

40 41 41 42 43 44 45

CHAPTER 8

what next for discipline and grievance procedures? an assessment of the new rights in practice 47 47 48 50 51

endnotes

54

recent Institute publications

56

contents

will the legislation set new standards? standards in grievance procedures standards in disciplinary procedures the glass is half full?

iii

executive summary

the disciplinary and grievance provisions of the 1999 ERA

I This booklet is by its nature only a partial look at developments in UK employment regulation. The sections of the 1999 Employment Relations Act (ERA) examined here are part of a wider set of reforms introduced by the Labour government since 1997. Some of these stem from the European Union (EU) – directives on working time, works councils, and the rights of part-time workers. Others are home grown such as the national minimum wage, the reduction of the qualifying period for unfair dismissal to one year, amended regulations on redundancy and TUPE, and the establishment of a Disability Rights Commission1. Others still form a major part of the ERA such as on statutory trade union recognition2. The meaning and purpose of such legislation and the failure to repeal most of the existing laws on trade union rights and collective action are part of the debate about New Labour’s project3.

iv

I Our contribution provides an analysis of the right to be accompanied in grievance and disciplinary procedures. We begin with a discussion of the background of disciplinary and grievance procedures within the context of the employment relation. We argue in chapter one that inequality in the labour market is carried over to employment, and that the basic experience of most workers is one of exploitation. In this sense fairness at work has no single meaning but is derived from the class nature of society and therefore what is fair for workers is not seen as fair for employers. When full employment and strong workplace trade unionism allows for a greater parity between workers and employers, then the State tends to sponsor employers to embrace collective bargaining to limit the collective power of trade unions. Thus we will argue that the proceduralisation and formalisation of areas such as discipline and grievance represents both a victory for the collective power of

workers and a limit of such powers in an unequal society. What follows is a defence of workers’ rights in terms of natural justice, but the definition and regulation of those rights is also contested. In the 1990s, the triumph of neo-liberalism associated with deregulated labour markets created pressures and tensions inside the labour movement and the Labour Party which has tended to result in weak regulation of the employment relation and weaker regulation still of the labour markets.

executive summary

I Chapter two provides further evidence of this debate dealing with issues raised in the White Paper, Fairness at Work. Chapter three examines the situation with regard to disciplinary procedures while chapter four does the same for grievances. Chapter five looks at the associated rights of representation, reasonableness and remedy. Chapter six examines the legal basis of workplace procedures, and chapter seven deals with the new ACAS Code of Practice. The final chapter attempts some tentative conclusions of the likely impact of this aspect of the 1999 Act.

v

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