The effects of the Dispute Resolution regulations, introduced in October 2004, are now beginning to be felt and assessed by the HR and legal community.
The regulations introduced a three-step process which companies have to undertake before disputes could be taken to tribunal. These steps are:
To put the grievance in writing
To hold a meeting to discuss the problem and arrive at a decision
To offer an appeal meeting if required.
Ben Willmott, employee relations adviser at the Chartered Institute of Personnel and Development, said the most recent figures for tribunals, from July 2005, show a year-on-year decrease of 25%.
However, he is not confident that this will be an on-going trend – particularly given the additional and future burden of regulations to prevent discrimination on the grounds of disability, sexual orientation and age.
Moreover, Willmott believes the regulations themselves have the potential to cause more tribunals. “The Dispute Resolution regulations do not state what constitutes a statutory grievance letter. It will be interesting to see whether disputes over these matters add to the number of tribunals in a serious way,” he said.
Matthew Howse, partner in the employment team at Barlow Lyde & Gilbert law firm, has seen the regulations triggering expensive legal action for HR, usually at an earlier stage than with previous grievance cases.
“Areas of ambiguity in the regulations mean clients are bringing in lawyers because they are worried they will do something wrong,” he said.
Howse also said some organisations are frustrated by the regulations since they have added an extra layer of procedure which must be followed, despite many employers already having sophisticated grievance programmes in place.
“These regulations were probably aimed at smaller employers who do not have an effective process in place, but they need to be taken seriously by everyone regardless of size or practice,” he said.
Research by workplace mediation firm, Total Conflict Management, of 700 organisations found that 63% are changing their dispute resolution practices as a result of the regulations.
Hannah Reed of the TUC also highlighted the negative effect of the regulations in formalising disputes earlier on. Rather than trying an informal route, both parties now have clear procedures to follow.
“If anything, this escalates the dispute rather than resulting in an equitable amicable solution,” she said.
On the positive side, Total Conflict Management’s research found an 80% reduction in cases going to tribunal for organisations which have used workplace mediation. While mediation is not stipulated under the regulations, they do at least open the door to use of this technique.
However, both Howse and Reed sound a note of caution for mediation. Howse said it can be an expensive exercise with no guarantee of preventing a further costly tribunal. Reed warned that companies paying for mediation services may compromise the perceived independence of such mediators and prevent employees from being fairly represented.
“The problem with the regulations as they stand is they don’t clarify the methods by which disputes can be resolved,” said David Liddle, founder of Total Conflict Management. “In an ideal world there should be clearer guidance to employers because many of them get stuck at the interface stage.”
A review of the regulations will bring forward more practical methods of dispute resolution. But for now, HR must proceed with yet more caution, Liddle warned.