HR practitioners and employment lawyers have always known the new statutory dismissal procedures and tribunal rules, both introduced in October 2004, have their shortcomings. But the strength of feeling they have generated among employment lawyers – as revealed in the tribunal monitoring survey conducted by the Employment Lawyers Association (ELA) and launched at its national conference last month – must have taken even the DTI by surprise.
It is clear that employment lawyers are deeply unhappy about the new ‘acceptance of claim’ and ‘acceptance of response’ procedures. They believe it is inappropriate for employers to face the possibility of a default judgment being entered against them, or to be denied the opportunity of taking part in proceedings, simply because their response form was not accepted by the tribunal.
Only a minority of respondents to the survey thought more claims were being settled because of the new statutory grievance procedure. Instead, they felt the new procedure had, in fact, made no difference to the number of claims being resolved before tribunal proceedings were instituted. They also believed the new procedures were costing employers more in terms of both time and money.
Most respondents did not believe the new ‘fixed’ periods for conciliation were encouraging conciliation. They were not being used to enter into genuine discussions, but were simply treated as a lull in proceedings.
On all the major issues tested (default judgments, case management, strike-out orders, conciliation and statutory dismissal procedures) there was a feeling that practice throughout the regions was not consistent.
The report will therefore make for pretty distressing reading for the government. The DTI may feel it has managed to stem the tide in terms of the number of applications to tribunals. However, it should recall that a number of multiple applications may have swelled the figure in 2004. Parties may also have been less keen to litigate before the tribunals so soon after introduction of the new procedures and rules. Furthermore, the new age regulations, due to come into force in October, are likely to lead to an increase in claims.
The government may also have scored something of an own goal by effectively restricting the period in which Acas can seek to conciliate to limited periods at the outset of the case. These are known as fixed periods and last for seven or 13 weeks, depending on the type of case. The idea is for the parties to have their minds concentrated at a very early stage on the issues involved, so as to bring forward the time when they might settle the dispute.
The theory is that early settlement will save legal costs and tribunal time. But the reality is that it is usually not until the parties know the strength of the evidence against them (through disclosure of documents and exchange of witness statements) that they are prepared to consider settlement. The DTI is to conduct a review of this new legislation, and the ELA will be very much at the forefront of the consultation process. When the consultation begins later this year, HR practitioners should articulate any concerns they have, so that these issues can be put right.
ELA survey: key findings
- 55% of respondents to the survey were dissatisfied with the ‘acceptance of claim’ procedure.
- 37% were dissatisfied with the ‘acceptance of response’ procedure. 81% believed it was not appropriate to deny employees access to the tribunal.
- 66% believed it was inappropriate for employers to face the possibility of a default judgment being entered against them or for them to be denied the opportunity of taking part in proceedings because their response forms were not accepted by the tribunal.
- 71% thought the new statutory grievance procedures made no difference to the number of claims being resolved early.
- Only 14% believed more claims were being resolved because of the new statutory grievance procedures.