Employment Bill [HL]

I am grateful to the noble Lord, Lord Cotter, for raising this issue. As I said when discussing Clause 1, it is widely agreed that resolving disputes in the workplace as early as possible is desirable for all parties. However, it has become clear that while the principles behind the 2004 statutory dispute resolution procedures were sound, enshrining detailed procedures in legislation has had unforeseen and unwelcome results. We now know that the statutory nature of the dispute resolution procedures has tended to lead to the use of formal processes to deal with problems that might have been resolved informally. Our fear is that this amendment would introduce a new set of prescriptive requirements for disciplinary and grievance procedures. We do not think such prescription is desirable as it is likely to lead to the same problems experienced with the existing statutory dispute resolution procedures. We are already acting to replace the current statutory procedures with a comprehensive package of measures to encourage and spread good practice designed to help resolve disputes in the workplace early. As I said when we discussed Clause 3, these measures include a revised ACAS code on disciplinary and grievance procedures. ACAS is revising its statutory code to be principles-based and concise, and it will be accompanied by fuller non-statutory guidance. The accompanying guidance will be designed to provide practical help to employers and employees, bearing in mind what would be appropriate for the size and resources of the employer and the nature and gravity of the complaint. In addition, we are proposing an incentive mechanism whereby a tribunal will have the discretion to increase or decrease an award by up to 25 per cent where a party has unreasonably failed to comply with the procedural provisions of the code. We believe that the introduction of a revised, concise, principles-based ACAS code of practice on disciplinary and grievance procedures supported by fuller non-statutory guidance and with an incentive mechanism in the Bill to follow the code is a sensible and balanced way of encouraging employees and employers to follow the principles of good practice in the early resolution of workplace disputes without encountering the problems that have arisen with the statutory dispute procedures. Our fear is that this amendment, if carried, would lead to the same problems as were experienced with the existing statutory dispute resolution procedures. Because the statutory code will allow tribunals to consider the appropriateness of parties’ behaviour in the circumstances of the case rather than assessing compliance with the set procedure, we believe that the comprehensive accompanying guidance will provide clarity for employers and employees about what is expected of them. We do not want to be as prescriptive as this amendment would require if it were carried.