Key points

  • An 'approved' code of practice is a document (approved, in most instances, by Parliament) that contains practical guidance on the law. In the context of employment law, a code of practice interprets the duties and responsibilities of employers and the rights of employees under this or that statute and/or its associated regulations and orders.

Legal status of a code of practice

  • A failure on the part of any person (employer, trade union official, or employee) to observe any provision of an approved Code of Practice does not of itself render him (or her) liable to proceedings before a court or tribunal. But in such proceedings, that failure is admissible in evidence and, if any provision of the code appears to the court or tribunal to be relevant to any question arising in the proceedings, it shall be taken into account in deciding that question.

  • In other words, the codes of practice referred to in this section have much the same status as has the Highway Code in respect of breaches of road traffic legislation. A motorist will not be prosecuted for a breach of the Highway Code. But, if he is prosecuted for an alleged offence under the Road Traffic Acts, his failure to observe any relevant provisions of the Highway Code will be admissible in evidence in proceedings before the magistrates' court.

Who issues codes of practice?

  • In the employment arena, codes of practice may be issued by:

    • the Advisory, Conciliation & Arbitration Service (ACAS) - to promote the improvement of industrial relations (per sections 199 to 202, Trade Union & Labour Relations (Consolidation) Act 1992);

    • the Secretary of State for Trade & Industry - 'for the purpose (a) of promoting the improvement of industrial relations, or (b) of promoting what appear to him to be desirable practices in relation to the conduct by trade unions of ballots and elections' (ibid. sections 203 to 206);

    • the Disability Rights Commission - on how to avoid discrimination or with a view to promoting the equalisation of opportunities for disabled persons and persons who have a disability, or encouraging good practice regarding the treatment of such persons (per section 53A, Disability Rights Commission Act 1999);

    • the Equal Opportunities Commission (EOC) - (a) for the elimination of discrimination in the field of employment; and/or (b) the promotion of equality of opportunity in that field between men and women (per section 56A, Sex Discrimination Act 1975);

    • the Commission for Racial Equality - 'for either or both of the following purposes: (a) the elimination of discrimination in the field of employment; (b) the promotion of equality of opportunity in that field between persons of different racial groups' (per section 47, Race Relations Act 1976); and

    • the Health & Safety Commission (HSC) - 'for the purposes of providing practical guidance with respect to the provisions of sections 2 to 7 of the Health & Safety at Work etc Act 1974 or of health and safety regulations or of any of the existing statutory provisions' (ibid. section 16).

    A code of practice requires prior consultation with interested parties, the consent of the Secretary of State and approval (in all but one instance) by resolution of both Houses of Parliament.

  • Under the Asylum & Immigration Act 1996 (as amended by section 22 of the Immigration & Asylum Act 1999):

    • the Secretary of State must issue a code of practice as to the measures which an employer is to be expected to take, or not to take, in order to avoid unlawful discrimination on grounds of race when establishing (as every employer is duty-bound to do) whether a job applicant 'subject to immigration control' has the legal right either to enter (or remain) in the UK or to take up employment while in the UK.

    In preparing a draft of the code, the Home Secretary must consult the Commission for Racial Equality (CRE) or (in Northern Ireland) the Equality Commission for Northern Ireland, and such organisations and bodies as he (or she) considers appropriate. The draft will then be laid before both Houses of Parliament, after which the Secretary of State may bring the code into operation by an order made by statutory instrument (ibid. sections 8 and 8A).

Advisory, Conciliation & Arbitration Service (ACAS)

  • When proposing to issue a code of practice (or a revised code), ACAS must first prepare and publish a draft of the code. It must then consider any representations made to it about the draft and may modify the draft accordingly. It must then transmit the draft to the Secretary of State for Employment who, if he approves of it, will lay it before both Houses of Parliament for approval by resolution.

  • To date, ACAS has issued three approved codes of practice. These are:

    COP 1: Disciplinary & Grievance Procedures (2000)

    COP 2: Discosure of information to trade unions for collective bargaining purposes (1998)

    COP 3: Time off for trade union duties & activities (1998)

    copies of which are available from: ACAS Reader Limited, PO Box 16, Earl Shilton, Leicester LE9 8ZZ (Telephone: 0870 242 9090).

Department of Trade & Industry

  • If the Secretary of State for Trade & Industry proposes to issue a code of practice (or a revised code), he must first consult with ACAS, then publish a draft of the code and, after considering any representations by interested bodies (that may prompt him to modify the draft), lay it before both Houses of Parliament for their approval by resolution. Once approved, the code comes into effect on 'such day as the Secretary of State may by order appoint'.

  • To date, three approved codes have been published. These are:

    Code of Practice: Picketing (1992);

    Code of Practice: Industrial action ballots and notice to employers (2000)

    Code of Practice: Access to workers during recognition and derecognition ballots (2000)

    These are available from: DTI Publications Order Line, Admail 528, London SW1W 8YT (Telephone: 0870 1502 500) (email: publications@dti.gsi.gov.uk).

    For further particulars, please turn to Picketing, strikes and other industrial action and Trade union recognition elsewhere in this handbook.

    Equal Opportunities Commission (EOC), Commission for Racial Equality (CRE) and Disability Rights Commission (DRC)

  • When proposing to issue a code of practice, the EOC, the CRE and the DRC must follow a procedure similar to that prescribed for ACAS. However, the Sex Discrimination, Race Relations and Disability Discrimination Acts specifically caution those bodies to first consult with organisations or associations representative of employers or of workers, and with 'such other organisations or bodies as appear to the Commission to be appropriate'. There are currently five codes of practice in force. These are:

    Code of Practice on sex discrimination, equal opportunties policies, procedures and practices in employment (1985)

    Code of Practice on equal pay (1997) (available, together with the code above, from: Marketing & Communications Department, Equal Opportunities Commission, Overseas House, Quay Street, Manchester M3 3HN)

    Code of Practice for the elimination of racial discrimination and the promotion of equal opportunity in employment (available from: Commission for Racial Equality, Elliot House, 10-12 Arlington Street, London SW1E 5EH (Telephone: 020 7828 7022))

    Code of Practice for the elimination of discrimination in the field of employment against disabled persons or persons who have had a disability (1996)

    Code of practice on the duties of trade organisations to their disabled members and applicants (1999)

Health & Safety Commission

  • As might have been expected, the Health & Safety Commission has produced a considerable number of codes of practice on health and safety issues. Of immediate relevance are:

    Code of Practice: Safety Representatives and Safety Committees (1978)

    Code of Practice: Time off for the training of safety representatives (1978)

    copies of which are available from HSE Books, PO Box 1999, Sudbury, Suffolk CO10 6FS (Tel: 01787 881165, Fax: 01787 313995, and email: www.hsebooks,gov.uk).

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