Resolving Disputes
Early - The Legal Framework
‘The
Government should challenge all employer and employee
organisations to commit to implementing and promoting
early dispute resolution, e.g. through greater use of
in-house mediation, early neutral evaluation, and
provisions in contracts of employment’. (Michael
Gibbons, Review of Employment Dispute Resolution,
March 2007)
The Employment Act 2002 (Dispute
Resolution) Regulations (the Dispute Resolution
Regulations) came into force on 1 October 2004 in order
to address perceived shortcomings in the dispute
resolution system. The objectives of the 2004 changes
were to enable the early identification of grievances,
to encourage employers and employees to discuss disputes
in the workplace, and to promote effective ways of
resolving disputes without resorting to employment
tribunals.
The Regulations require all
employers and to follow minimum statutory procedures in
dealing with dismissal, disciplinary action and
grievances in the workplace. The procedures each consist
of three steps: an initial letter, a meeting and an
appeal.
There is also a statutory code of
good practice in disciplinary and grievance situations
produced by ACAS that sets out good practice beyond the
statutory framework and is taken into account when
determining the fairness of a dismissal but does not
have to be strictly followed.
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Many
organisations have well-developed internal
procedures that go beyond what is set out in the
ACAS Code.
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Some
organisations make use of either internal or
external mediation.
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ACAS
can also be asked to conciliate on issues that may
result in an employment tribunal claim.
Disputes involving a breach of
legal rights can also be settled by arriving at an
agreement which prevents employment tribunal claims
being made either as a result of ACAS conciliation or if
it is a compromise agreement.
Recommendation to repeal Regulations by Michael
Gibbons - March 2007
In December 2006 the Secretary of
State, Alistair Darling asked Michael Gibbons to review
employment dispute resolution in Great Britain.
The headline recommendation of his
review is the complete repeal of the 2004 Dispute
Resolution Regulations.
Download his review NB: external link to PDF on DTI
site.
Michael Gibbons states that ‘the
strong consensus is that the principle behind the 2004
changes is sound: parties should be encouraged to
resolve disputes at as early a stage as possible.
However, there is a strong consensus that the attempt to
achieve that objective through statutory procedures has
been unsuccessful and has had unintended negative
consequences’.
Rather than facilitating early
resolution of disputes the Review found that the
Regulations have ‘exacerbated and accelerated disputes’
owing to the fact that employers are concerned about a
dismissal being found to be automatically unfair while
an employee may find that their application has not been
accepted by a Tribunal because either have failed to
follow the procedures.
An employee with a grievance also
usually has three months in which to lodge a tribunal
complaint, ‘so even where employees want to resolve
matters informally they may feel under pressure to get
the formal process underway’.
Michael Gibbons has made a suite of
recommendations the most significant of which is the
repeal of the Regulations he has also made a very string
case for the use of workplace mediation.
He states that ‘his vision is of a
greatly increased role for mediation’ and that
‘encouraged by signs of success in the context of
employment disputes elsewhere in the world, I commend
increased use of mediation to employers, employees and
practitioners in Great Britain’.
Michael Gibbons (2007) recommends
the following action to promote early dispute
resolution:
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Employer organisations
should:
Employee organisations
should:
Both employer and
employee organisations should:
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promote early
resolution as a management tool and provide
advice, guidance and training to empower
managers to resolve disputes in the
workplace; and
-
consider encouraging
the use of mediation as a standard provision
in contracts of employment.
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ensure their members
are aware of the realities of litigation
e.g. by encouraging parties to seek high
quality advice. This can help parties to
determine the strengths and weaknesses of
their case and increase awareness of what to
expect should they proceed to litigation;
and
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improve understanding
and awareness levels among their members of
the value of third party mediators to help
resolve internal workplace disputes which
they are not able to resolve themselves.
(Gibbons, 2007)
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DTI Consultation Process – Closes 20 June 2007
DTI are conducting a consultation
process that sets out a package of measures for taking
forward the recommendations of the Gibbons Review of
employment dispute resolution in Great Britain.
External Link
ScotCoach will be submitting a
response form and participating in the meeting events
planned by DTI and encourages other organisations to do
so as this will help to ensure that these important
reforms will meet the needs of the workplace in
Scotland.
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