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 k