When the employment tribunals system was first set up in the 1960s, the aim was to offer a cheap, accessible and non-legalistic process for resolving workplace disputes. This laudable objective has proved difficult to achieve in practice.
We can all agree that when disputes occur, they should be resolved quickly and before the employer-employee relationship has deteriorated beyond repair. The reforms introduced in 2004 were meant to ensure that only the most serious cases end up in a tribunal – but they’ve failed to do so.
Three steps to failure
The three-step statutory discipline and grievance procedures were meant to encourage both sides to settle disagreements through internal procedures rather than in tribunals. But they certainly haven’t been as easy as 1-2-3 and, after an initial fall, the number of tribunal cases has continued to rise.
Most HR professionals have tales of woe, such as the elevation of the procedure over substance, or the over-formalisation of disputes deterring resolution. They are often unsure about whether an employee has actually raised a grievance or whether they have to use the procedures to end a fixed-term contract. They feel employees can effectively stymie disciplinary proceedings by raising grievances at all stages of the process.
For many in HR, the problems continue after a claim has been lodged. Few employers see the tribunal system as effective and too many, particularly smaller businesses, feel they have to settle claims before they reach a hearing, rather than incur large legal fees in defending a claim – even if the claim lacks merit.
Of course, weak and vexatious cases make up only a minority of tribunal claims. But if they’re not dealt with appropriately, they undermine the credibility of the whole system and reduce confidence in its fairness and effectiveness. Mechanisms to ensure that claimants are discouraged from taking weak claims, such as ordering deposits or awarding costs, are available, but they must be used effectively.
Employers believe tribunal chairs are reluctant to use the powers available, and find different regions are inconsistent in case handling.
The government has acknowledged the failure of its 2004 regulations and has set up a review group – chaired by Michael Gibbons, and of which I’m a member – to make recommendations for improvement.
Gibbons is keeping an open mind and all proposals are being considered.
The CBI has called for major reforms of the procedures. It is interested in ideas to allow good employers to opt out, and for better guidance, so that employers are confident in continuing disciplinary hearings in the absence of the employee when they take long-term sick leave in an effort to delay the process.
It has suggested that whatever happens to the dispute resolution regulations, improvements are necessary to tribunal procedures to restore employer confidence.
While some employers may worry about even more reform in this area, we’re at a point where there is a strong consensus around the need for change.
I’m sure there are few employers who would shed a tear if the regulations were scrapped altogether. The big question is what, if anything, is put in their place. The Gibbons Review will report in the spring, when I hope we will have strong recommendations for improvement that can command the support of all sides when we start the formal consultation process.
CBI’s proposed reforms to tribunal system
Award costs – even small amounts – against unsuccessful claimants to send the message that there are adverse consequences to bringing weak claims.
Introduce practice directions for greater consistency and effective case management.
Assign judicial assistants to cases to free up the chair’s time and ensure proper procedures are followed.
By Susan Anderson, director of HR policy, CBI
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