How workplace disputes should be best resolved has been brought into sharp focus following the publication of the Gibbons Review last month.
Commissioned by the government, the review sought to analyse criticism from employers and unions that the current statutory dispute resolution regulations create an adversarial situation – exacerbating disagreements that could otherwise be settled informally.
Time for change
This, both parties argue, has resulted in an increase in the number of cases going to tribunal, which costs employers an estimated £9,000 a time.
The report’s author, Michael Gibbons, was in no doubt that change was required because the 2004 regulations have failed to deliver.
“This is perhaps a classic case of good policy, but inappropriately inflexible and prescriptive regulation,” he said in his foreword.
His recommendations, which are currently in a three-month consultation period, included suggestions that alternative dispute resolution methods, such as mediation, are sought in the first instance, and that straightforward claims be fast-tracked. Better resourced advice lines that promote alternative dispute resolution practices was another proposal.
Gibbons is a leading mediator for family disputes, so it comes as no surprise that he is championing the cause of mediation at work. But his recommendations have also met with wide-ranging support.
Susan Anderson, CBI director of HR policy, and a member of Gibbons’ review panel, said that dispute resolution at work was currently overly bureaucratic.
She said clear-cut quarrels over holiday or wage entitlement could be resolved through an uncomplicated claims process. Providing space for informal chats creating a workplace culture where people feel comfortable about apologising and allowing managers to sometimes ‘knock heads together’, would remove a lot of the unnecessarily formal process, she said. “We need to bring common sense back to the workplace.”
However, Anderson was suspicious about opening the floodgates to third-party mediators, and would like to see more resources put into the Acas advice phone service and the promotion of the service’s guidelines.
But where face-to-face mediation is required, Fiona Colquhoun, director of employment mediation at the Centre for Effective Dispute Resolution (CEDR), was adamant it works.
She calculated that about 80% of workplace disputes that go through mediation end up finding a successful outcome. “In a lot of cases, the mere fact that both parties have come to mediation means they want to try and find a solution,” she said.
According to Colquhoun, mediation is no soft option. With the average process lasting 10 hours, she said participants must be committed to moving to the future and understanding each other’s perspective.
Money is not always at the heart of disputes, which are just as likely to revolve around moving an employee to another department or manager, or providing a fair reference, she added.
Colquhoun felt there was little awareness of the potential for mediation in many workplaces, and that part of the consultation should look at promoting such services.
CEDR is a non-profit organisation, and Colquhoun said its services could complement those provided by Acas by offering disputing parties a wider choice of mediation routes.
Whoever is responsible for leading workplace mediation should be “neutral and respected”, said Sarah Veale, the TUC’s head of equality and employment rights.
She said Acas was the obvious choice, but she would like to see more money directed towards the service. “Transferring funds from tribunals to mediation would be a much more positive use of capital and would save employers money,” she said.
But Veale was wary about trashing the 2004 legislation altogether. She said the consultation must also look at what is good about the law, and “not throw the baby out with the bath water”.
Clearly, there is a long way to go with the issue. Peter Schofield, director of employment and legal affairs at manufacturers’ organisation the EEF, is keen to see a pilot scheme set up to test the recommendations. Any serious attempts at an alternative must be tried, he said.
But Schofield was concerned that today’s employment landscape is dominated by lawyers, and efforts to put relations on a more informal setting could be misplaced. “Things have moved on. It could now be too late for this. Legalism has taken over,” he warned.
Employment tribunals: the facts
The average cost to business of defending an employment tribunal claim is about £9,000.
The Gibbons Review said the dispute resolution system cost the government about £120m per year.
The latest annual report http://www.employmenttribunals.gov.uk/publications/documents/annual_reports/ETSAR05-06.pdf from the Employment Tribunal Service found that 115,000 employees went to tribunal for the year 2005-06, with more than 201,000 claims.
About 75% of claims are resolved without the need for a hearing, a substantial proportion with the involvement of Acas.
The most common claims were for unfair dismissal (41,832), breaches of the Working Time Directive (35,474), and unauthorised deduction of wages (32,330).