Disciplinary Procedures (Code of Practice) (Hansard, 26 January 1987)

§ Mr. Kenneth Clarke

My right hon. and noble Friend has decided, after careful consideration, that he cannot approve the draft. He has written to the chairman of the ACAS in the following terms:

Here follows the whole of the letter.

Sir Pat Lowry CBE

Chairman

Advisory Conciliation and Arbitration Service

11/12 St James's Square

London SWIY 4LA

26 January 1987

On 30 July 1986 you sent me a draft Code of Practice on Disciplinary and Related Procedures which would, if approved, take the place of the 1977 Code of Practice on Disciplinary Practice and Procedures in Employment. Under the Employment Protection Act 1975, section 6, I am required either to approve the draft and lay it before Parliament or, if I do not approve of it, to publish details of my reasons for that.

I appreciate the work which ACAS has put into preparing the draft and I welcome the proposals to revise the 1977 Code. I cannot, however, approve the draft you sent me for the following reasons:

(1) The purpose of the Code is to improve industrial relations. I agree that good disciplinary practices and procedures can help greatly to avoid unnecessary disputes and promote a productive working environment. For that reason it is vital for the Code to be directed at those employers and employees who stand most to benefit from it. The length of the draft, its complexity and the language it uses are not designed to attract employers and employees to read and adhere to it. I believe that the code should be a reasonably short sensible document of a kind likely to be referred to by shop-floor mananagment and workers. The present draft seems to be aimed primarily at lawyers and personnel managers in larger firms.
(2) Good industrial relations depend on acceptance by employer and employee alike of their responsibilities. The draft gives insufficient weight to the role of employees;
(3) It is the essence of any code to provide a statement of accepted good practice which it is reasonable to expect of those to whom it applies. A large proportion of the employers to whom the new Code would apply are small firms who could not reasonably be expected (as the draft acknowledges) to adopt all the provisions of the Code, yet the draft does not contain a clear statement of which elements of the Code arc to be taken to apply even to the smallest firms;
(4) The draft contains a mixture of descriptions of statute law, guidance based on case law and advice with no such legal origin but the reader cannot tell from the text which kind of guidance is which. It is important that there be clarity about legal obligations;
(5) I have borne in mind in considering the draft, a number of points made in the Lords debate on Codes earlier this year and these are reflected in the reasons I have given for rejecting it. There is a wider issue here. Once there is a Code, Tribunals must take account of it. Case law then develops on the back of the code. There is then pressure to revise the Code to keep up with the guidance in the caselaw but that process will inevitably lead to ever increasing detail in the Code. I do not think the draft Code submitted is consistent with all our efforts to prevent excessive legalism from developing in this area of industrial disputes.

I have discussed this matter with my colleague the Paymaster General who is closely involved with our industrial relations policy and consulted him before reaching my decision. We recognise that this will be a disappointment. We should like to invite ACAS to consider the matter again in the light of this response and to make a further proposals for a revised Code. We will, of course, be very happy to discuss 33W with you any of the issues this raises. We hope we shall be able to make common cause in producing to Parliament a revision which better meets our common objective— to promote better industrial relations.

This letter will be published in a Press Release, in response to a Parliamentary Question this afternoon, and a copy of it will be sent to the Chairman of the Select Committee on Employment.