April 2007

ALL CHANGE ! (AGAIN)

The Department of Trade and Industry has published an independent review of employment dispute resolution procedures, which calls for a radical overhaul of the current approach to resolving workplace disputes. The central recommendation is that the government should repeal the statutory dispute resolution procedures.

As a result, the following recommendations were made to the DTI:

• Repeal the statutory dispute resolution procedures set out in the Dispute Resolution Regulations.
• Produce clear, simple, non-prescriptive guidelines on grievances, discipline and dismissal in the workplace, for employers and employees.
• Ensure there are incentives to comply with the new guidelines, by maintaining and expanding employment tribunals’ discretion to take into account reasonableness of behaviour and procedure when making awards and cost orders.
• Challenge all employer and employee organisations to commit to implementing and promoting early dispute resolution, e.g. through greater use of in-house mediation, early neutral evaluation, and provisions in contracts of employment.
• Introduce a new, simple process to settle monetary disputes on issues such as wages, redundancy and holiday pay, without the need for tribunal hearings.
• Increase the quality of advice to potential claimants and respondents, through an adequately resourced helpline and the internet, including as to the realities of tribunal claims and the potential benefits of alternative dispute resolution to achieve more satisfactory and speedier outcomes.
• Redesign the employment tribunal application process, so that potential claimants access it through the helpline and receive advice on alternatives when doing so.
• Offer a free early dispute resolution service, including where appropriate mediation, before a tribunal claim is lodged for those disputes likely to benefit from it. The government should pilot this approach.
• Offer incentives to use early resolution techniques by giving employment tribunals discretion, to take into account the parties’ efforts to settle the dispute, when making awards and cost orders.
• Abolish the fixed periods within which Acas must conciliate.
• Simplify employment law, recognising that its complexity creates uncertainty and costs for employers and employees.
• Simplify the employment tribunal claim and response forms, removing requirements for unnecessary and legalistic detail, eliminating the ‘tickbox’ approach to specifying claims and encouraging claimants to give a succinct statement or estimate of loss.
• Unify the time limits on employment tribunal claims and the grounds for extension of those limits; this should simplify claim pre-acceptance procedures.
• Give employment tribunals enhanced powers to simplify the management of so-called ‘multiple-claimant’ cases where many claimants are pursuing the same dispute with the same employer.
• Encourage employment tribunals to engage in active, early case management and consistency of practice in order to maximise efficiency and direction throughout the system, and to increase user confidence in it.
• Review the circumstances in which it is appropriate for employment tribunal chairs to sit alone, in order to ensure that lay members are used in a way that adds most value.
• Consider whether the employment tribunals have appropriate powers to deal with weak and vexatious claims and whether the tribunals use them consistently.

In response to the review, the DTI has issued a consultation entitled ‘Resolving disputes in the workplace’. This seeks views on a wide range of issues arsing out of the recommendations. The closing date for responses is 20 June.

By way of further news, please also note other key changes in relation to age discrimination:

Age discrimination claims will be exempt from the requirement for a fixed conciliation period of 13 weeks. This particular change is likely to be of little practical effect, since Acas has been treating age claims as if they were already included in the list; and

A dismissal will be unfair if the reason for dismissal is the employee exercising, or seeking to exercise, his or her right to be accompanied, or to accompany another, at a meeting to request working beyond the intended date retirement.

Other potential developments

The government is considering strengthening the law on sexual harassment to include protection for female employees against harassment by the public in the course of their employment. The decision to tighten the law follows a court ruling, in Equal Opportunities Commission v Secretary of State for Trade and Industry, that the government failed to comply properly with the EU's directive to protect women against sexual harassment and pregnancy discrimination. The government has decided not to appeal the ruling and will make changes so that the law is clearer on harassment, pregnancy discrimination and maternity leave discrimination.

If you have any queries, please do not hesitate to contact Kevin McKernan or David Gibson on 0191 2339700.