Routes to resolution


Guy Dehn
18 September 2001

Response to DTI consultation:

Introduction
Public Concern at Work welcomes this consultation paper which looks at the role and effect of disputes in the context of the wider employment relationship. We are particularly pleased that it takes a circumspect view of such disputes, considering how they impact on employees, employers and the wider public.

Relationships in the workplace - both between colleagues and between staff and managers - often become close, both through proximity and time. Close relationships (as people widely accept in the context of their personal lives) can and do give rise to tension and disagreement from time to time. As such human relationships are hardly ever capable of surviving actual or threatened recourse to litigation, the way people at work approach and handle potential disagreements will have consequences on them as individuals, on their colleagues and on the organisations involved.

In our view it is best that such disputes are, if possible, avoided. If they cannot be avoided they should be defused. If they cannot be defused, attempts at conciliation should be made. If conciliation does not work, and the dispute if formalised then people should have recourse to independent resolution. As the consultation paper makes clear, even a successful tribunal claim can prove something of a pyrrhic victory.

The best way workplace disputes can be avoided and defused is when employers, employees and their representatives conduct an open relationship in which the parties recognise and heed their mutual rights and responsibilities. The swift progress to formalising a dispute can jeopardise the future of the working relationship.

Our approach
In promoting legitimate whistleblowing, Public Concern at Work has developed a practical expertise in the way organisations depend on and influence the conduct of the individuals who work there. Our confidential helpline has handled over 2500 actual or prospective whistleblowing concerns and many employers (including government departments, public bodies and leading companies) now promote this practical and constructive advice service to their staff. The approach we take on the helpline is dispute avoidance wherever possible.

Secondly, as the Consultation Paper looks particularly at the position of SMEs, it should be noted that two thirds of the public concerns we handle come from organisations with less than 100 employees and that we are ourselves are a small business.

Below we give our comments on the specific questions the DTI is seeking views on.

1 Only allowing applications to tribunals once workplace disciplinary or grievance procedures have been completed.
It is clearly desirable that internal grievance and disciplinary procedures should be used. However we consider that the Government’s second proposal - to increase or decrease awards where either party has unreasonably failed to follow minimum procedural steps in disciplinary or grievance issues - is the preferred way to achieve this objective. Therefore while we agree with the aim, we do not consider this specific proposal is the most sensible way to achieve it.

Additionally we see practical difficulties with this proposal. First, a requirement that grievance and disciplinary procedures be completed before a claim can be made to an employment tribunal does not sit easily with the right to claim interim relief within seven days of a dismissal. This right exists in the Public Interest Disclosure Act 1998 and certain other employment laws.

Furthermore unless there were some separate statutory control or oversight over the detail of all grievance and disciplinary procedures (which we do not think would be desirable), a general requirement to complete the procedure would also apply where the procedure itself was clearly unreasonable.

2 Increasing or reducing awards where the employer or the employee had unreasonably failed to take a set of minimum procedural actions in respect of a disciplinary or grievance issue.
We support this proposal for the reasons given above. In our view the three simple and practical steps (formally flagging the issue; attempting to resolve it internally; and offering an appeal) set out on page 17 of the Consultation Paper are the right minimum actions, in that they are of general application. We would, however, have real reservations if these minimum steps became more prescriptive.

3 Awarding additional compensation to an employee to reflect the absence of a written statement.
We support this proposal for the reason that a written statement is fundamental to improving understanding of the employment relationship. Without such statements, the parties may not even begin to consider their respective rights and obligations.

Additionally the failure to provide a written statement impacts on public funds in that 20,000 tribunal claims a year have to determine what the key provisions of the employment relationship were because there is no written statement. This is an equally compelling reason to sanction those employers who do not provide written statements.

4 Removing the current 20 employee threshold for including details of disciplinary or grievance procedures in the written statement.
While employment law sees small employers as those with less than 20 staff, in our experience there are real shifts in the practice and culture in employers, say, with 3 staff, those with 8 and those with 19. It is for this reason that we would be concerned if prescriptive burdens were introduced which applied equally to a newsagents as to a multi-national company.

With so many very small employers, we do not think it desirable or necessary to require them all to establish disciplinary and grievance procedures. However, we do agree that where an employer with less than 20 staff has such procedures, the written statements should include details of them.

The proposal (at 2, above) to increase or reduce awards where minimal steps have not been followed without good reason should be a sufficient incentive on small employers to ensure that when there is a dispute in their workplaces, they heed these key practical steps in attempting to resolve it.

5 Allowing tribunals to disregard procedural mistakes beyond a set of minimal procedural actions if they made no difference to the outcome of the case.
We support this proposal. Save for those cases where Parliament has provided that dismissal for a specified reason is automatically unfair, we believe that the overriding issue should be whether the dismissal was in substance unfair. Where the dismissal was fair in fact but there has been some purely procedural irregularity we doubt there is any proportionate benefit either for employees, employers or employment relations by revisiting the process once the employment relationship is ended. This is particularly the case when the award to an employee in such a case is minimal and amounts at best to a pyrrhic victory.

6 The Government is also seeking views on whether further guidance or good practice material is needed to ensure that employers are aware of and can meet their obligations in written statements of employment terms.
We recognise there is a case for ACAS providing a model statement of employment terms, particularly for very small and small employees. Equally if there is to be good practice guidance, we see no reason why it should be aimed at employers: it should be equally available to employees, be it through the ACAS website or otherwise.

7 Removing ACAS’ duty to conciliate in cases, such as disputes over pay, breach of contract and redundancy payments.
We do not have any specific experience on or expertise of such claims. As indicated above, we welcome the general approach of these proposals to try to ensure that disputes are resolved internally if possible. Put simplistically we see the new framework as emphasising internal resolution, then if that is unsuccessful conciliation and then if that is unsuccessful adjudication.

We would therefore have expected there to be some substantive reasons for the proposal that certain employment disputes should leapfrog the conciliation stage. While we recognise that some particular disputes (e.g. those essentially of law, rather than fact) may not be well suited to conciliation, on the information advanced in the consultation paper we do not think the proposal to remove classes of dispute from the duty to conciliate is justified. If the Department is to consider fast-tracking cases about redundancy, pay and breach of contract (see proposal 17 below) we hope it will also consider the case that others are making for a Labour Inspectorate.

8 Introducing a fixed period for conciliation.
As we understand the position, the duty on ACAS to conciliate arises once a tribunal application has been made. As we have stated it is our view litigation almost invariably signals the end of the working relationship and so, once litigation has been initiated, we imagine the potential for the conciliator to save the working relationship is greatly reduced.

If this is correct, then the conciliator’s role at that time will primarily be to seek mutually agreeable terms on which the relationship ends. We think there is a case for looking at the extent to which employees might be expected or required to seek conciliation before they can bring an ET claim. This would mean that employees (and employers) will be more likely to think of approaching ACAS before the working relationship is irrevocably damaged.

While the merit and practicalities of this suggestion are matters on which ACAS and the Employment Tribunal Service will be well placed to assess, we flag at this point that were there to be a requirement it would not be desirable to apply it to a claim for interim relief.

9 Broadening the scope of compromise agreements to match ACAS-conciliated settlements.
We support this proposal to remove the apparent anomaly that while unions, advice agencies and lawyers can compromise a particular employment claim, only ACAS can provide a final settlement of all employment claims.

10 Enabling other organisations to provide conciliation services alongside ACAS.
As a matter of principle we believe that competition is a good thing and we see no reason why it cannot exist within the public sector. This is not to say that ACAS does not do an excellent job, but we imagine that the only help other conciliators would look to the Government to provide would be a level playing field.

11 Introducing charging for applications to employment tribunals and when a case is listed for hearing.
Where a member of the public brings a civil claim (including a small claim against a retailer) he or she is expected to pay a modest fee - though exemptions exist for those on benefit or in need. Additionally such fees are recoverable if the claim is successful. We understand that the reasons for such fees are that it is believed that they (a) discourage people from lightly bringing claims and (b) ensure that the costs of the resolving a dispute are borne in part by those who initiate the claim, and not exclusively by public funds.

We see no general reason of principle why all employment claims should be treated differently. If however, as a matter of practice, the great majority of ET claimants would be eligible for some form of state support and so would not pay any fee, then the cost of administering the scheme would be disproportionate to any benefit. An obvious example of this would be a proposal that fees be introduced for social security tribunals. On the information presented in the consultation paper we are unable to make an assessment of this.

If there are to be charges, we make two points. First, there should only be one charge, be it for the application or on the listing of the case (and we favour on the listing of the case as there charges may be levied on both parties). Secondly, there should not be any charges for low or fixed value claims such as workplace detriment, unlawful deduction of wages or redundancy payments.

If accepted, the result of this would be that charges could only be introduced for unfair dismissal claims and other claims at large, would be levied once on both parties, would be subject to a means test for the applicant and would be recoverable by the winning party. As stated above, we would expect there first to be some cost-benefit analysis as to the implications for public funds.

As to deterring inappropriate claims or defences, charges are the only tool available while the employment tribunal system is cloaked in the current excessive levels of secrecy. As we explain in our response on proposal 20, in our view a better way to deter people from lightly making or disputing tribunal claims will be if the whole process is conducted in the open.

12 Including in awards of costs compensation for the time a party has spent in dealing with the claim in awards of costs.
Earlier this year new rules were introduced (a) to broaden the circumstances in which costs may be awarded and (b) to substantially increase the maximum award of costs. We consider before any further changes are developed in this area, the practical effects of these new rules should be assessed.

13 Changing the presumption on awarding costs in weak cases, so that tribunals will have to give reasons why costs are not awarded.
See the comment immediately above.

14 Enabling tribunals to make orders for wasted costs directly against representatives who charge for their services.
We agree that it will be unjust to penalise an applicant or respondent in costs where the fault is that of their representative. Allowing wasted costs orders to be made directly against a representative will deter those few who may or do waste time and behave unreasonably. As the principle is to deter and sanction such conduct, we do not see why it should not be extended to representatives from the not-for-profit sector.

15 Making the application form to employment tribunals (IT1) mandatory.
We are pleased to learn that the current IT1 form is to be revised and we see the sense in making the form mandatory. However as the consultation paper does not say to what extent applicants make claims other than using the IT1 form now, we are not able to assess the implications of the proposal. We would not, however, support it unless the Employment Tribunal Service made the form readily and freely available via the internet, ACAS, unions and advice agencies. Secondly any such rule should not apply to applications for interim relief as these need to be made within seven days of the dismissal.

16 Enabling Presidents of Employment Tribunals to issue practice directions on procedural and interlocutory issues.
We support this.

17 Introducing a fast track for certain jurisdictions with either no or a short fixed period for conciliation. This could include a written determination if both parties agree.
Subject to our comments on proposals 7 and 11, we support this.

18 Registering applications publicly only once the claim has gone through the conciliation period and is going to a hearing.
Please see our comments on proposal 8.

19 What more could be done to ensure that weak cases are identified and dealt with at an early stage.
If ACAS considers that a party’s claim is weak we do not know to what extent it can and does make this clear to that party. If there is some inhibition on them expressing such a view, we consider this should be reviewed as from our helpline we are aware that a good many people assume that what ACAS says confers some authority or legitimacy on their claim.

20 Whether to publish the particulars of the complaint and the response on the public register.
We agree with the Department (para 5.7) that there is much to be learned from the Woolf reforms to civil court procedure and we note that increased openness in the litigation process is central to those reforms. We consider that that the current tribunal rules are unduly secretive and endorse the view of the High Court that the principles of open justice should apply equally to employment tribunals. We remain unable to understand the policy reasons behind the current levels of secrecy and, in the light of the Minister’s assurances, we consider they should be carefully and widely reviewed, not least because they are open to challenge under article 6 under the Human Rights Act.

Our specific interest, however, is in claims brought under the Public Interest Disclosure Act (PIDA) and we make the following proposal in respect of such claims, of which there have been several hundred in the last two years. We propose that any claim and response in a PIDA case should be placed on the Register 58 days after the claim is received at the Registry.

While the Department will recognise that several of the following reasons apply generally, we hope it will agree that the proposal is overwhelmingly strong for claims under the Public Interest Disclosure Act:

  1. It will reduce the risk that an overriding public interest can be bought off in the private settlement of the claim. Examples of this could have been claims against Maxwell’s misuse of pension funds, the sexual abuse of children in care in North Wales, or the safety risks on Piper Alpha.
  2. It will help ensure that insofar as there may still be such a serious risk, the parties involved will be more likely to deal with it properly and promptly rather than view it as part of the leverage or negotiations in the dispute.
  3. It will ensure that any person who inspects the Register will have a balanced view of the nature of the public interest issue in any PIDA case.
  4. It will do much to reduce the risk that media reporting (whether instigated by the claimant or not) of a PIDA claim is one sided.
  5. It recognises and reflects the distinct public interest aspect of claims under PIDA.
  6. It will make it more likely that the issue of public access to the Register generally will be HRA (article 6) compliant.

18 September 2001
Guy Dehn
Public Concern at Work
Tel 020 7404 6609
gd@pcaw.co.uk