Every employment specialist in the land will rejoice when the Dispute Regulations 2004 are consigned to history by the Simplification of Employment Bill. But will the legislation finally draw mediation into the core of dispute resolution? And what other changes can employers expect to face when it finishes its path through Parliament later this year?
Q How important is it that mediation has been given a central role in the draft disciplinary and grievance guidelines?
Fiona Colquhoun, director, CEDR: We are very pleased mediation was recommended in the Gibbons Review and is incorporated into the new legislation. We see this as being very positive because although mediation is often associated with major commercial disputes, it is a flexible process where an independent person helps those in disagreement negotiate or solve a problem. So it can work well at all organisational levels and deal with all types of differences.
Bronwyn McKenna, legal director, Unison: It is a good idea. The means for implementing it is via the Acas code, which isn’t out for public consultation yet, but the previous Acas code worked well, so I hope the guidelines return to the same principles as before the 2004 regulations were brought in.
Q How should employers prepare to switch from heavily prescriptive regulations to more versatile, open guidelines?
Fiona Colquhoun It is much better to go back to guidelines than to impose statutory regulations. This means that managers, employees and their representatives should be trained in better ways of dealing with conflict and disputes to prevent them developing and escalating in the first place.
Bronwyn McKenna Employers should start to develop their own locally agreed procedures. They need to sit down with the employee representatives and agree what procedures will apply with their workforce, as there may be features particular to an industry that means something like disciplinary hearings have to be handled in a particular way. It needs to make it clear what the process is going to be, who people need to raise a grievance with, and who is going to be dealing with disciplinary matters, so that everyone has clarity about how things can be taken forward.
Q How can organisations help to ensure the new measures are a success?
Fiona Colquhoun We are seeing an increasing interest in conflict management training and consultancy in collaborative ways of working. So if organisations have mediation skills coupled with collaborative ways of working, you are not going to get as many disputes in the first place.
Bronwyn McKenna Employers need to ensure their procedures are fair, that employees have a copy of it in writing and that they give people sufficient time to prepare and take advice before disciplinary hearings.
Q What role should HR play?
Fiona Colquhoun HR people should be doing what they should have been doing anyway: helping organisations and managers manage people, and not doing this by statutory process but by having open conversations and building up trust with employees. Basically, doing all the good things that HR people should be competent at doing. It is more difficult now because of the plethora of legislation on discrimination. There is much more consciousness on issues such as harassment and bullying so HR functions, in particular, need to enhance their skills in managing difficult people, difficult situations and difficult conversations – and become proactive in managing conflict.
Bronwyn McKenna HR directors must review all their disciplinary and grievance procedures to make sure they are clear and comply with new Acas code. They must check that what they have is robust and capable of being understood by everyone. But then they will probably be doing this as part of best practice anyway.
Q Is this a chance for HR to show leadership?
Fiona Colquhoun There is a leadership opportunity because the lack of statutory process means employers have to ensure their culture is sufficiently collaborative and their guidelines, policies and behaviours treat people fairly. In that way, employers will not only enhance their reputations, but save immeasurable amounts of resource as conflict costs so much.
Bronwyn McKenna HR will be the front line in ensuring the provisions work. Obviously, tribunals will be guided by the provisions of the Acas codes looking at compliance and to any decisions coming out of the tribunals. But it should be HR leading the way to ensure the procedures are compliant.
Q Is it a case of HR going back to the way things were done before the 2004 regulations came into force?
Fiona Colquhoun Organisations from all sectors had excellent people management processes and I think the HR function has got to take back some of its pro-activity in the way it helps to create the culture of the organisation. It has to move away from too much process to people.
HR directors should take the lead in ensuring that management has modern conflict management tools, mediation policies and dispute resolution systems and training to ensure organisations can operate effectively in a statutory-free environment that requires creativity and initiative. The priority is to do things better in the framework of the new legislation.
Bronwyn McKenna It is very much going back to what was in place before. But there are some important changes to Acas’s role at an early stage. Basically, it is going to get increased resources, so there will be more opportunity for conciliation to take place before proceedings. One of the disadvantages of the regulations was that it had cut-off points for when Acas’s involvement had to end, and from the union perspective I am pleased these have been removed and Acas’s role enhanced.
Main elements of the Simplification of Employment Bill
- Existing dispute resolution procedures replaced with measures to encourage early or informal resolution.
- As yet unknown changes to the tribunal system.
- Clearer, stronger enforcement of the minimum wage through a straightforward penalty and fairer method of calculating arrears.
- More straightforward enforcement and penalties regime for the National Minimum Wage Act 1998 relating to voluntary workers.
- Clarifies investigative powers of the Employment Agency Standards enforcement regime by making offences under the Employment Agencies Act 1973 ‘either way offences’ that can be dealt with by a magistrates or crown court.
- Changes the trade union membership law to allow unions to exclude individuals who are members of a political party. Existing legislation will be amended to comply with Article 11 of the European Convention on Human Rights.
Have your say
Harmajinder Hayre, partner, Beachcroft LLP: The bill proposes to abolish the concept of “protected conduct”, following the case of Aslef v United Kingdom, where the European Court of Human Rights ruled the union could exclude a member who was active in the British National Party. Yet, the UK government has so far failed to respond to the wider issue, which is that unions should generally be free to decide membership criteria for themselves.
Whether there is scope for further litigation, and ultimately, further amendments to TULRCA, remains to be seen. Importantly, the European Court’s insistence that trade union membership should only be limited by the state where necessary, implies that further amendment is inevitable.
Ruth Bonino, professional support lawyer, Reed Smith LLP: A dismissal will no longer be considered automatically unfair if organisations fail to follow a fair procedure. The requirement to bring a grievance before bringing certain claims will also go. At the same time, employers will be encouraged to follow good practice guidelines, while tribunals will have discretion to increase or decrease awards up to 25% where an employer or an employee fails unreasonably to follow, in most cases, the Acas code. The new regime should enable the tribunal to look at the whole picture, giving it a wider discretion over awards than at present.
Guy Bailey, senior policy adviser, Employment & Pensions Group, CBI: The new system of ‘fair’ arrears to see workers compensated at the current rate of the national minimum wage. This will help workers establish that they have received their entitlement and encourage employers to resolve underpayments swiftly.
The CBI is also supportive of the introduction of proportional penalties, as this will encourage employers to comply with minimum-wage legislation and help prevent arrears arising. It also has the advantage of being proportionate – so that the penalty reflects, to some degree, the level of non-compliance, unlike a fixed penalty or a fixed penalty per worker.
Michael Thompson, partner, Eversheds: Under existing agency legislation, a tribunal may make what is known as a ‘prohibition order’ that prevents an individual or company from being involved with an employment agency. Anyone who fails to comply is tried in a magistrates’ court and may be liable to a fine of up to the statutory maximum, which is £5,000.
The proposed changes will make any failure to comply with a prohibition order an ‘each way offence’. This means the individual could still be tried in a magistrates’ court, or alternatively, be tried in a crown court and potentially receive an unlimited fine.