Employment Bill

As mentioned in the last Leader, the Employment Bill will remove the present statutory discipline and grievance procedures. This means that employment tribunals will now be looking not at whether employers have acted in conformity with legislation but whether the procedures they have operated are in line with a new ACAS code. This is more uncertain than fixed procedures. Most schools will have formal procedures that will meet the ACAS code (at present in draft form). The criteria for discipline practices are:

• the employer must make an effort to establish the facts in good faith

• inform the employee

• hold a meeting

• allow the employee to be accompanied

• decide on appropriate action at that meeting

• allow an appeal

Helpfully, the draft code allows a disciplinary meeting to be held even if an employee is persistently unable or unwilling to attend.

This should help where an employee goes off sick the moment disciplinary action begins. It also allows for a disciplinary hearing and a grievance hearing to be held at the same time, so that the grievance does not have to be heard separately before disciplinary processes can continue.

However, a code is only a code, and an employment tribunal may decide that in the circumstances of the case either of these things was unfair. As with the present legislation, failure to act according to the code will lead to an uplift in an award.

The changes are due to come into effect in April 2009. Until then the present statutory procedures apply. Schools should be checking their procedures to see that they do conform to the ACAS code. It is not unknown for callers to the hotline not to be unsure if the school has a discipline policy for staff or not. This would be most unwise in the future.

The Employment Bill may well also have significant effects on trade union action. It may wholly outlaw dismissals before or in regard to industrial action (at present staff may be dismissed after 12 weeks) and employment tribunals may be compelled to direct reinstatement in these cases.

This may have little impact in schools where such actions by management would be unusual if not unthinkable. However, the bill may also outlaw hiring temporary workers to replace strikers. If this does happen, schools might find themselves in jeopardy if they use teaching assistants to cover for striking staff.