Soft law to replace rigid procedures

New measures to replace the statutory disputes procedures may not come in until October 2009, and there was still a “lot of uncertainty” about what would be in them, according to Ian Smith, barrister and professor of employment law at the University of East Anglia.
The key message behind the Gibbons report, which recommended repealing the statutory procedures, was the need to “get back to a position where such procedures are meant to resolve cases, and are not just preliminaries to litigation,” said Smith. “Far too often in practice employers and employees are going through the procedures in order to protect their own backsides in tribunals.”
He said his sources indicated there would be “soft law” changes coming in alongside provisions in the Employment Bill, designed to “produce a culture change so that going to tribunal is seen as a failure. Not where you go first but where you go last.”
He had heard hints the new measures may include a “sort of sub-tribunal, like a small claims court, maybe before a chairman sitting alone, or a kind of registrar” dealing with straightforward claims more quickly than a full tribunal.
Increased case management by tribunal chairs, more tribunal control over lawyers, and more power to throw out vexatious claims, were also on the cards, Smith thought. And there was also likely to be a solution for dealing with multi-claimant, no-win, no-fee cases, such as the public sector equal pay claims that were currently “bedevilling the system” said Smith.
There was going to be much greater emphasis in the future, he said, on the need to resolve disputes inside the organisation, involving an increased role for Acas in arbitration, conciliation and mediation in the workplace.

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