First in the class

The European Commission is actively pursuing plans to facilitate court actions by collective groups

The Journal, May 2007, page 42

They were supposed to make our lives and those of our clients so much more straightforward – “It’s as simple as 1-2-3”, said the DTI literature. They were also intended to bring about early resolution of workplace disputes without resort to the employment tribunal. Instead, hardly a week goes by without an employment tribunal or employment appeal tribunal decision on the interpretation of the legislation. What can I be talking about? What else but the statutory minimum dispute resolution procedures.

Introduced via the Employment Act 2002 and the Employment Act 2002 (Dispute Resolution) Regulations 2004, practitioners agree that the intention behind the procedures was sound. However, the number one recommendation from the Michael Gibbons review report “Better Dispute Resolution” echoes what the majority of us have been saying for some time: “Repeal the statutory dispute resolution procedures set out in the Dispute Resolution Regulations.”

What went wrong

Gibbons suggests that parties have tended to focus on getting the procedures right – for fear of being barred from proceedings or being punished by uplifts in compensation – and have lost sight of what should be the ultimate goal: resolution of the problem. The procedures were also felt to be counter-productive in some organisations because, as soon as something had to be put in writing, this formalised issues which previously could have been resolved “over a pint in the pub”.

The report therefore recommends a switch in focus which will see the production of new, simple (where have we heard that before?!), non-prescriptive guidelines on grievances, discipline and dismissal. Employers will then be challenged to commit to early dispute resolution through greater use of in-house mediation in particular. Failure to behave reasonably in attempting to resolve the dispute will then be taken into account should the matter end up in tribunal.

New forms of help

Having considered how to support employers and employees to resolve more disputes internally, the report goes on to recommend that more active assistance should be given where an internal solution has not been reached. A new, simple (that word again!) process is mooted for claims involving pure monetary disputes over the likes of wages, redundancy or holiday pay. These would be determined without the need for a hearing.

A helpline is then suggested as a way of providing claimants and respondents with quality advice on the realities of tribunal claims and the potential for alternative dispute resolution. Gibbons recommends that claimants would access the tribunal application process via this helpline, and that a free early dispute resolution service, including mediation where appropriate, should be made available prior to a claim being lodged if a situation is likely to benefit from it. Perhaps pointedly, the suggestion is made that the government should pilot any such approach. This new vision would also result in the abolition of the fixed periods of Acas conciliation which were introduced at the same time as the dispute resolution procedures.

And the tribunals?

Finally, the Gibbons report moves onto the employment tribunal system itself, which it is said should be made – yes, you’ve guessed – “simpler”, but also “cheaper” for users and the government. This would be achieved, in part, through streamlining the claim and response process, removing unnecessary and legalistic detail, and also by unifying time limits and the grounds for their extension.

Multiple-claimant cases are identified as an area where potential savings can be made, in terms of tribunal time and both government and party money. Tribunals are to be encouraged to engage in active, early case management. There will also be a review both of the circumstances in which tribunal chairmen can sit alone, and whether tribunals have appropriate powers to deal with weak and vexatious claims.

Too much to ask

The most wide-ranging of all 17 of Mr Gibbons’ recommendations is no 11, which begins: “Simplify employment law…” It is perhaps telling that while all the other points made above translate into questions in the DTI consultation process triggered as a result of the Gibbons report, the question not asked is: “Should employment law be simplified?” Speculating on the reasons for the omission is only likely to lead to the conclusion that it is because the answer is so obviously “yes”, and an answer to the supplementary question as to how this could be achieved is more likely to prove elusive.

The consultation process on the other aspects of the Gibbons report is open until 20 June 2007 and can be accessed here: www.dti.gov.uk/consultations/page38508.html . Although it does not deal with the overall simplification of employment law, practitioners will welcome the opportunity to shape the future of the employment tribunal system and the accompanying dispute resolution procedures. While “simplicity” is a big ask, the valuable contribution of those with practical knowledge of the current systems will go a long way to help achieve this ultimate aim.

    Jane Fraser, Head of Employment, Pensions and Benefits, Maclay Murray & Spens