Employment disputes revisited

Three years ago, new statutory dismissal and grievance procedures were introduced to streamline and simplify employment disputes. The DTI has recently completed a review of these procedures and has concluded that they are not working. Michael Gibbons, who conducted the review, says the procedures encourage people to get legal advice too early, and trap employers and employees in complex, expensive and time-consuming formal processes. So now the DTI is consulting on yet another round of procedural changes. As in so many other contexts, the government is looking for what it calls a more 'proportionate' way to resolve disputes.
 
So what is the DTI is hoping to achieve?

• To encourage early dispute resolution through new, simpler, non-prescriptive guidelines on grievances, discipline and dismissal. Engagement with the guidelines will be rewarded when tribunals make their awards and lack of engagement may be punished with costs orders.
• To provide a new, simple process to resolve monetary disputes over wages, redundancy and holiday pay, without the need for a tribunal hearing. There will also be a new telephone and internet advice system for claimants and defendants, through which they will access the tribunal system. This 'impartial' advice will alert them to the 'realities of tribunal claims' and the 'potential benefits of ADR to achieve more satisfactory and speedier outcomes'.
• To make the employment tribunal system easier and cheaper to use by simplifying employment law, and streamlining employment tribunal forms and procedures.

 
So will any of this work? The devil, as always, will be in the detail. Mediation is an ADR option which clearly has a role to play in some workplace disputes, especially where the complainant is still employed, and there is a working relationship to restore or maintain. But ASA has particular concerns about the proposals for helpline and internet advice. Who will staff these helplines? Will they be advisers who know their employment law, or call centre staff with a script? It's really important that people get good, independent advice at an early stage, so they can make an informed decision about what will work best for them. Advice which is pre-determined to scare you about tribunals and sing the praises of ADR is hardly 'impartial'.
 
ADR is intended to be voluntary, but increasingly people are being hustled into it, either through fear of cost penalties, or though government advice with an agenda. Does this offer people a benefit which they would otherwise never discover, or divert them from access to a rights-based remedy? Read the consultation and make up your own mind.
 
The deadline for responses is June 27th.