The code discriminates against non-union staff who should be entitled to have a qualified person with them at any disciplinary hearing
Business secretary Vince Cable recently announced that he was signing off a “minor” amendment to the Acas Code of Practice on disciplinary and grievance procedures after a year-long consultation.
In the next breath he called for Acas to carry out a full review of the same code.
Why did the outcome of a minor consultation trigger a full review? And what might it mean for teachers?
It comes down to who can attend a meeting. Sounds simple, but the simple is, as ever, more complicated.
Trade union membership was at a peak of 13.5 million in 1979, but has since steadily declined to 6.5 million in 2013. Seventy-four per cent of employees now choose not to join a union.
The reasons teachers join are varied, but it’s generally accepted that the primary one is to ensure access to edu-legal support when, for example, an allegation is made by a pupil.
However, while education has one of the highest densities of trade union membership, more and more teachers and school staff are choosing to join a professional support organisation such as the one I run.
And we do this successfully, despite the legislative position and the Acas code (which brings together and provides guidance on the legislation) being, in our view, discriminatory to non-union members.
The chances of a good outcome are stacked against you
How? Because, if you’re subject to a disciplinary or grievance procedure you have the statutory right, under the Employment Relations Act 1999, to be accompanied by a certified trade union representative, an official employed by a trade union or a fellow worker. If you make a reasonable request to have one of these attend a disciplinary hearing, your employer cannot say no.
But there’s a problem here for the 74 per cent of non-union members. If you’re a trade union member, you could be accompanied by almost anyone, from the local trade union rep through to a QC – as long as they’re either employed by the school or a trade union. As ridiculous as it might sound, taking a QC to an internal hearing is a reality. At her disciplinary hearing last year, former Quintin Kynaston head Jo Shuter was accompanied by Daphne Romney, QC, with a number of other legal representatives and various officials from a headteacher’s union.
However, if you’re not a union member, legally your employer doesn’t have to agree to allow you to be accompanied by anyone except a fellow worker. It is unlikely that a fellow worker would be qualified or experienced in providing such support. In which case, you’re probably on your own with the chances of a good outcome stacked against you.
It’s widely accepted that having someone qualified with you at disciplinary and grievance hearings is beneficial to both parties and, in practice, my team are up and down the country accompanying teachers every week.
We’ve always been allowed to accompany one of our subscribers, although we are not a trade union. But in principle we could be banned – an absurd situation. It is discrimination against non-union members, and a good example of where the law and
the Acas code do not accurately reflect practice.
Case law is changing remarkably quickly in this area and the recent consultation, while only making minor amendments to the code, triggered responses that have raised a much broader issue about who should be able to accompany any worker, including a teacher. This will be a key issue for the forthcoming wider review.
Whilst enabling legal representation for all employees at the informal hearing stage would be a step too far, they should all be entitled to having someone qualified with them, regardless of whether they are a union member or not. Joining a union is a choice, but this choice should not affect your employment law rights. It’s time that this discussion finally took place.