Dispute prevention: employment tribunals

In a discussion paper published last month the conciliation service, Acas, advised employers that targeting more resources at dispute prevention in the workplace, including mediation services, was the most effective way to to deal with employee grievances and cut the number of cases going to tribunal.

“Prevention is better than cure,” said chief executive John Taylor. “We have always believed that good working relationships are vital in creating an effective workplace and that the responsibility for this rests squarely with the employer and employees.”

The increased onus on employers to establish processes aimed at reducing tribunal hearings was formalised in October 2004 when the Employment Act 2002 (Dispute Resolution) Regulations came into force.

This legislation made it mandatory for every UK employer to set up statutory disciplinary and grievance procedures, and to use them correctly when workplace disputes arise.

It set out a basic three-step procedure that must be followed before a case can be heard by an employment tribunal:

  • the issue must be set out in writing 
  • a meeting must be held between the parties to discuss the matter
  • an appeal meeting must be held if the matter has still not been resolved.

Failure by either party to follow the procedure means they could incur financial penalties if the dispute goes to an employment tribunal. In a dismissal case, where the employer has failed to follow the procedure, the dismissal will automatically be found to be unfair.

And the initial signs are that the legislation is having the desired effect, with the latest official figures showing a 16% fall the number of single tribunal hearings from 66,153 in 2003-04 to 55,582 for 2004-05 – a reduction that the government says will save taxpayers millions of pounds.

But, said Audrey Williams, partner in the HR group at law firm Eversheds, this reduction has been achieved at a cost to employers. In many cases, they find themselves overburdened with the number of grievance procedures they have to deal with.

At the heart of the issue is the complaint that what constitutes a grievance is not fully explained in the legislation, forcing employers to be over cautious.

“For some, a resignation letter is cause to evoke the grievances procedure – things are getting too formalised,” said Williams.

At Novotel London West, HR manager Helen Kalyan admits that because it is difficult to tell whether someone is making a formal grievance or “just having a whinge,” managers must ensure they err on the side of caution.

Regardless of how informal the meeting is, managers should make and keep notes and ensure that everyone is happy with the outcome, said Kalyan. “If things then proceed to tribunal you have your notes to back you up,” she says.

A forthcoming DTI review of the 2004 reforms is expected to look at this issue and whether the legislation is genuinely encouraging employers and employees to resolve disputes in the workplace.

Acas is confident things are on the right road. “Britain’s employment tribunal system is still a much preferred model to the fully legalised systems that exist elsewhere, but more work is needed to fine-tune the implementation of the recent reforms and assess their current effectiveness,” says the discussion paper.

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