Just before Christmas, the Department for Trade and Industry (DTI) made an announcement of huge significance for all employment practitioners. It appointed a member of the Better Regulation Commission, Michael Gibbons, to conduct an independent review into our system of employment dispute resolution. Doubtless this is in response to the criticism it has faced that reforms introduced in October 2004 are not working.
Trade and industry secretary Alistair Darling seemed, tacitly at least, to have admitted defeat when in October he was quoted as saying: “We do need to ask ourselves, and not be too proud about this, did we get it right first time?” The answer must surely have been a resounding ‘no’.
Possible reforms
Abolishing the statutory requirement to pursue disciplinary and grievance procedures internally before disputes can be referred to the employment tribunal. An enormous amount of time, effort and money is wasted on pursuing these internal procedures, with seemingly little benefit to either of the parties in terms of conflict resolution.
How many times have you satisfactorily resolved a dispute internally because such procedures were invoked? In many cases, these internal procedures simply provide an opportunity for both sides to have a dress rehearsal prior to the main event.
The government could look again at the so-called pre-acceptance rules, whereby tribunals are given the chance not to accept claims or responses if they have not been completed correctly. Is it right to deny access to the tribunal simply because forms have not been completed correctly? Many think not.
Fixed periods for conciliation fail to recreate the drama and pressure of an impending court hearing earlier in the litigation as the government had hoped, thus bringing about faster resolution of cases before reaching the door of the court.
Such fixed periods come at the wrong time in the course of litigation and, given Acas’s increasingly limited resources, run counter to the government’s aim of reducing the number of claims.
Either the whole concept of having a fixed period for conciliation could be abandoned or, if there must be a fixed period, this should be at a different stage in the litigation, after either side has had an opportunity to examine the other side’s evidence, rather than before.
The most effective and practical idea for the government to consider might be to provide statutorily for employers and staff to have an opportunity to engage in ‘without prejudice’ discussions (initiated by either party) to seek to resolve matters – to include an agreed termination of employment – at any stage of the employment.
This may seem radical but at present, largely because of a decision in the 2004 case of BNP Paribas v Mezzotero, employers have had to be very wary in initiating such discussions for fear of being accused of constructively dismissing an employee, or pre-judging any existing or subsequent dismissal process.
Put your views forward
These are just some of the ideas that will be put to the DTI during the course of the Gibbons review. All those involved in the employment dispute process should make their views known.
This may be one of the best opportunities in recent years to change the nature of our employment disputes regime, and all the signs are that the government is now very much in ‘listening mode’, so as to avoid getting it wrong for the second time.
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Key points
The DTI has appointed Michael Gibbons to conduct a review into the system of dispute resolution.
Now is the time to put forward proposals for reform, with the government seemingly in the mood to listen.
One proposal might be to allow employers and staff a genuine opportunity to conduct negotiations on a ‘without prejudice’ basis, without fear of a subsequent complaint of constructive or unfair dismissal as a result.
Other reforms could include the abandonment of the requirement to follow statutory internal disciplinary and grievance procedures before being able to go to the tribunal and the pre-acceptance procedures in relation to claim and response forms, and also the abolition or postponement of the fixed periods for conciliation.
By Richard M Fox, head of employment, Kingsley Napley
