CIPD comment to DTI preliminary consultation
Mike Emmott, CIPD Adviser on Employment Relations
Mike Emmott attended a workshop at the DTI in December 2006 as part of a wide-ranging assessment of the ways in which the Government can help employers and individuals to resolve employment disputes as quickly as possible. He subsequently wrote to the DTI setting out some initial points relevant to the review:
- There needs to be a new “front end” to the employment tribunals (ET) claims process. Mediation is the obvious candidate. Mediation would be significantly different from the current process of ACAS conciliation, in terms of the authority/influence vested in the mediator, the resources required and the expectations of the parties. But there are many issues to resolve before mediation could become an effective alternative to the ET process for any significant number of claims. And it could only be an option rather than a mandatory part of the process, since without the willing commitment of both sides it would be meaningless.
- I would hope the present pilots will throw some light on how far parties can be persuaded to place their faith in mediation in discrimination cases. If mediation is not to go the way of earlier initiatives to strengthen alternative dispute resolution (eg individual arbitration), it will need to be effectively marketed.
- Compromise agreements could also have a more defined role in the process of dealing with claims. They are attractive because their explicit aim is generally to achieve a parting of the ways on terms that are acceptable to both sides. Their popularity might be seen as evidence that employers are walking away from the present statutory procedures. There may be circumstances in which compromise agreements should not be used eg because they undermine statutory protections in relation to collective redundancies: this question should be considered further.
- The suggestion that the present three-stage procedure might not apply in sectors with an “earned opt-out” is interesting. However I think the starting point should be that the new procedure has failed to produce visible benefits for employers or employees and should be withdrawn across the board: it should not be a matter for negotiation on a sector-by-sector basis.
- It is common ground that the answer to bad management practice is to encourage and support good practice. The question is what can the Government do? Or perhaps better, what is it willing to invest in? Its approach to resourcing Acas to provide advice and help on good practice to small firms hardly inspires confidence. The CIPD is impressed by the evidence for the benefits of “shared HR” advice and support for small firms but have seen little sign of official interest to date in following up on the DTI pilots a couple of years ago. However ideas about sector agreements (contained in the pre-election “Warwick” agreement between the Labour Party and the trade unions) might possibly be useful in this area.
- In general I think the wider costs and benefits of the ET process have got significantly out of line. The greater use of lawyers and the proliferation of jurisdictions offering scope for multiple claims by individuals, combined with the new statutory procedures, have undermined the initial concept of speedy and informal redress. I agree we should look at the scope for alternative ways of enforcing individual employment rights (as for example with the minimum wage) in areas where the role of workplace experience and judgement is less evident.
DTI are holding further meetings to discuss dispute resolution in January, at which CIPD will be represented.