Employment changes the new landscape
Posted by Joanna Worby on 16th May 2012
The new Dispute Resolution Report from the Department for Business Innovation and Skills (BIS) deserves your attention if you are considering Human Resource strategy for the coming financial year.
In an effort to reduce the burden on the Employment Tribunal system the Government consulted widely in 2011 on proposals for pre-empting tribunal claims and resolving grievances before they escalate to litigation. In November last year BIS responded to the consultation with their proposals. In summary:
- BIS’s overarching vision is to ‘embed’ mediation” as part of the ‘dispute resolution process’: Embedding involves providing access to mediators either internal or external as soon as the dispute cannot be resolved through the usual informal channels. Thus the idea still remains that people need a third party to resolve matters but employers may find it equally beneficial to invest in the earlier stages of ‘resolution’; by improving manager’s conflict management skills.
- The Government intends to change the legislation so that anyone considering lodging a tribunal claim has to lodge it with ACAS first. ACAS will then offer pre-claim conciliation. Those with previous experience may know that ACAS is traditionally reactive and over stretched but funding has been promised to make Pre-claim conciliation available for all types of ET claim. ACAS will be able to extend this period by two additional weeks where they believe a reasonable chance of settlement is likely with this additional time.
- The ACAS “pre ET” conciliation period may lead employers to “wait out” internal disputes because they know they can access the ‘free’ conciliation service further down the line. However, waiting for the free services of ACAS comes at a cost; impact that the ongoing conflict in the workplace. If mediation can be provided economically it is wiser to use mediation early to get people back to work long before things reach this pre litigation stage.
- BIS recognises that SMEs face different problems to large employers, and is going to fund the establishment of two SME mediation regional networks. While there is no shortage of mediators in the UK currently there is a clear lack of interest from the SME business community. The Paper makes clear the Government expects to use the ‘Every Business Commits’, or ‘The Big Society’ policy, as a way of addressing the lack of familiarity with mediation. Mediation’s purpose is to resolve disputes quickly and cheaply so it is clearly a worthy ambition.
- In the retail sector the Government’s approach is different. It intends to explore with the large retail organisations how they might share their mediation expertise and cascade their mediation knowledge and expertise within Retail down through their supply chain. Whether the supply chain will be convinced that their purchasers are a neutral and independent source of mediation advice and expertise remains to be seen but the principle of driving mediation through commercial channels is one which is likely to expand.
- We have previously highlighted the proposals for protected conversations about an employment issues ‘as a way of resolving the matter without fear’. BIS will be consulting later this year on these ‘protected conversations. ’Whilst the principle is to be applauded, this may turn out to be ineffective as a protected conversation may well protect the employee, and all he wishes to say, just as much as the manager. Moreover, there is likely to be substantial litigation if the “protection” were to encompass discriminatory language or behaviour which was unlawful.
- Lastly Compromise agreements will be renamed ‘settlement agreements’ and a standard text will be developed for all parties to simplify the process and reduce the legal costs of implementing a compromise agreement. These proposals are likely to reduce the standard of protection afforded to employee’s but will be welcome to business who will be able to enter into settlement agreements more easily and with a reduced “legal Spend”
