Acas have now released a revised Code of Practice on this area, which can be found as a pdf at the link below:

Acas Code of Practice on Time Off for Trade Union Duties and Activities

It replaces the old 2003 COP and was effective on the 1st January 2010. New additions include:

• the provision of cover when employees take time off
• payment for time off
• training and the importance of e-learning
• the responsibilities of line managers and union representatives in ensuring time off arrangements are effective
• access to facilities and the use of electronic communication technology.

As is usual, the COP has been supplemented with guidance manuals, of no statutory effect but designed to be a simpler guide to the uninitiated. They can be found on the Acas website at this link.

Indeed, the language of Article 6 refers to ‘determination of civil rights and obligations’ when referring to the need for an impartial tribunal, and so on. Some new areas risk blurring the lines: there are now provisions for workers to be legally prevented for working with children, in schools, and with vulnerable adults where concerns over their behaviour has come to light. In this situation the effect of the disciplinary proceedings can be said to have consequences that go further than the relationship between the employer and employee. 

In the case of G, R (on the application of) v X School & Anor [2009] EWHC 504 (Admin), a teacher was accused of sexual impropriety with a 15 year old, involving a breach of trust. He was found by a disciplinary panel to have been in breach of trust, and the case referred to the Secretary of State to see if a direction should be made forbidding him from working in education. He was refused legal representation at the meeting. He challenged the validity of the meeting by judicial review, claiming that under Article 6 the proceedings were effectively criminal proceedings given the gravity of the allegations and the consequences of adverse findings. In the alternative, he claimed that even were the proceedings civil then they were of sufficient seriousness to require a right of legal represenation under article 6. The High Court found:

In my judgment, the gravity of the particular allegations made against the Claimant (sexual impropriety with a person under 18 and abuse of position of trust), taken together with the very serious impact upon the Claimant’s future working life of a potential s.142 direction, are such that he was, and is, entitled to legal representation at hearings before the Disciplinary Committee and the Appeal Committee. On such matters, the Claimant could not fairly be expected to represent himself, and being accompanied by a trade union official or a work colleague (even if available) was not sufficient.

It is important to realise that direct enforcement of human rights legislation, and judicial review proceedings at all for that matter, is only possible against public sector employers. Even so, this ruling opens the way for a considerable widening in what procedural safeguards must be put in place for more serious disciplinary cases.

Link to the report

Its conclusions:

The Acas inquiry found no evidence that Total, Jacobs Engineering or IREM have broken the law with regard to the use of posted workers or entered into unlawful recruitment practices.

There is tension around the application of the Posted Workers Directive in the UK, and its relationship with the UK’s industrial relations system. These issues have been highlighted by the recession.

The complexity produced by the interrelation of EU law, national agreements and supplementary local collective agreements is a potential source of confusion and dispute. A review by the relevant parties of the interrelationship between national and local collective agreements would aid transparency and reduce the potential for misunderstandings and conflict.

• Prioritising more jobs over new laws
• If not major new regulation, then what?
• Government’s role is to facilitate … conversation – not always to mandate either side on what should be done
• It is not possible to legislate prescriptively for everything
• The agreement on Agency Workers marks the successful completion of perhaps one of our most important objectives – to create now for the UK the right framework of employment protection without compromising our essential labour market flexibility.

… you might be forgiven there wasn’t much new law heading our way. It’ll be interesting to see if this remains the case, since Union leaders regard that objective as far from complete. They’ll be campaigning on yet more rights for agency workers (the 12 week rule already being an uneasy compromise), sham self-employment and, I reckon, stronger laws on workplace consultation and union recognition / bargaining rights.

Normally they’d stand no chance, but with the Labour party being in the financial state it is they may feel like they have a bit more clout than normal.

Many rights that exist do so only contractually, and as a result of collective bargaining. The drive to reduce union influence is therefore arguably still stronger than it is here – cynics here might say the unions here have largely already won!

The fact that Tesco have immediately joined the union-bashing party might be seen as indicative of big business only doing what it needs to. Tesco, and the big supermarkets in general, are good employers in the UK, but although any company will announce its good practices as somehow evidencing business altruism, they will only ever do what they need to so to succeed in their current environment.