Resolving disputes successfully in the workplace

In response to the recommendations of The Gibbons Review published on 21 March 2007, the DTI launched a formal consultation seeking views on proposed measures to help resolve disputes in the workplace The consultation period ended on the 20 June 2007. We will have to wait for sometime as to what the outcome will be possibly until 2008/09 so for the time being we will have to continue to struggle with the complexity of the current regime.

A key failing of the current dispute resolution system identified by the Gibbons Review is the high administrative burden for employers and employees spawned by implementation of the Employment Act 2002 (Dispute Resolution) Regulations 2004 (the Regulations). Apart from the estimated average cost to business of £9,000 for defending a claim, there is an increased recourse to formal procedures where other approaches would suffice and a higher reliance on external advice. Government also carries a substantial financial burden. The Gibbons Review made a number of recommendations which the DTI used as a foundation for its consultation.

To help resolve more disputes in the workplace the Government sought views on:

  • Repealing the 2004 statutory dispute resolution procedures. And, if the regulations were repealed the Government would consider further measures which it is consulting on including:
    • offering clear good practice guidelines on a statutory basis using current ACAS codes of practice as a starting point
    • encouraging good practice by empowering tribunals with penalty measures to discourage inadequate attempts to resolve disputes; and
    • promoting early resolution.
  • Whether the law on procedural fairness should revert to the pre-2004 position or whether there is merit in a wider review of the law relating to procedural fairness in unfair dismissal
  • Whether to invite the CBI, TUC and others to develop guidelines on best practice in dispute resolution.

To help employers and employees to resolve more disputes beyond the workplace the Government is considering:

  • Providing a helpline accessible by telephone and internet
  • Redesigning the employment tribunal application process so that potential claimants access it through the helpline and receive advice on alternatives when doing so
  • Whether straightforward claims are dealt with by a new process without the need for employment tribunal hearings
  • Expanding the dispute resolution roles of ACAS in the period before a claim is made
  • Whether to target these new services and if so should the Government set criteria for ACAS to prioritise certain disputes
  • If new services are to be targeted, would it be appropriate for the Government to guide ACAS to prioritise the following types of dispute:
    • those likely to occupy the most tribunal time and resources if they proceed to a hearing, eg discrimination and unfair dismissal cases
    • those where the potential claimant is still employed; and
    • those where the employer is a small business with fewer than 250 employees.
  • Whether the fixed conciliation periods which place time limits on ACAS’ duty to conciliate employment tribunal claims should be removed.

To make the employment tribunal system simpler and cheaper the Government is considering:

  • Simplifying employment tribunal form
  • Requiring claimants to provide an estimate or statement of loss when making a claim – this could help remove straightforward claims at an early stage
  • Harmonising current time limits for bringing claims whether or not the dispute resolution procedures are repealed; and if so, whether to set those time limits to three months, six months or another time period
  • Harmonising, either totally or partially, the grounds for extension in so far as the legal constraints of differing jurisdictions allow
  • The grounds for extension
  • Specific ways to improve employment tribunal and case management procedures
  • Whether employment tribunals provide the most appropriate way of resolving multi-claimant claims, or if other mechanisms better serve the interests of all the parties involved
  • Whether existing powers of employment tribunals are sufficient to deal with weak and vexatious claims;
  • When employment chairs should sit alone
  • How to structure employment tribunal panels and use lay members more efficiently; and
  • If Government should promote employers’ compliance with discrimination law through better advice and guidance, rather than by widening the powers of employment tribunals to make recommendations in discrimination cases.

Commentators have been quick to note that the DTI consultation currently views the creation of replacement provisions as prerequisite to any repeal of statutory procedures. Furthermore repeal of Part 3 of the Employment Act 2002 requires primary legislation. Together these factors make change before 2008-09 unlikely.

Funding may also be problematic since ACAS and the employment tribunal are funded by different Government departments and to implement cost neutral changes could generate inter-departmental conflict as budgets are cut from one area to boost resources in another. Finally, the extent to which Government may prescribe the functions and operations of ACAS, as suggested by certain of the consultation questions, could see the excessive rigidity identified by Gibbons as a key flaw of the current statutory procedures return to plague the new system.

Whatever the outcome we can only hope that the time will be well spent and that any changes to the system are practical and achieve a reduction in the formality and costs of managing the disciplinary process.

For more information contact alan.julyan@speechlys.com