There’s No Disputing it – It’s Time For A Change!

Benjamin Franklin once reportedly said that ‘The strictest law sometimes becomes the severest injustice’.  Many small employers would certainly agree when it comes to the statutory employment dispute resolution procedures introduced in 2004.  But help is on its way.

At the moment failing to follow a single procedural step when dismissing an employee can lead to a finding of automatic unfair dismissal coupled with an unjustified payout.

Take the example of an employee who committed a clear act of gross misconduct. Following a disciplinary hearing the employee was dismissed, but the employer did not tell the employee about his right of an appeal (even though the employee knew of his right). This meant the dismissal was automatically unfair and the employee was entitled to a minimum award in the Tribunal of four weeks’ pay (subject to a £330 per week limit).

Other similar problems have increased the number of Tribunal claims and created a sense of injustice and frustration amongst advisors, unions and employers alike. These effects are the very opposite of the intended aims of the dispute resolution procedures.

So a formal review of the regulations was initiated by government in December 2006.

The report, prepared by Michael Gibbons, heavily criticised the existing procedures and recommended replacing them with ‘clear, simple, non-prescriptive guidelines on how to resolve a dispute’. He also recommended a significantly increased role for mediation, and in particular the role of the conciliation service ACAS.

The knock on effect is the Employment Bill 2007-2008, which aims to strengthen and clarify key aspects of employment law and to improve its effectiveness for employers, trade unions, individuals and the public sector.

The Bill is likely to receive the Royal Assent this summer, and become the Employment Act 2008. It would sound the death knell for our current rigid and overly legalistic procedures.

So what does this mean for employers? Primarily a gradual introduction of a more flexible system of resolving workplace disputes based on codes of practice. It should help protect smaller employers, achieve fairer outcomes in many tribunal cases, resolve cases far earlier and avoid the need to go to a tribunal in the first place.

As proof of the government’s intention they announced an additional £37 million worth of funding for ACAS last month for extending its advisory and conciliation services. So with any luck, speedier and more efficient methods of resolving workplace disputes, without recourse to the Employment Tribunals, may be with us very soon.

Foot Anstey offers employment law training on a range of issues. Click here to find out more.

For further information or advice, contact James Collings

Published 06/03/2008. The author of this article is James Collings