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The man in the middle
Page 26
Page 27
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Could mediation reduce the number of workplace disputes ending up at employment tribunal? The government is investing £37m to find out.
Words: Mike Sherrington The Advisory, Conciliation and Arbitration Service (ACAS) is poised to have a greatly enhanced role in settling workplace disputes, large and small, in a government-inspired attempt to cut the number of cases that end up before employment tribunals.
The service, which recently achieved public prominence in its attempts to achieve a resolution of the dispute at Grangemouth oil terminal, has received a three-year, 1.37m grant from the Department for Business, Enterprise and Regulatory Reform (BERR) to try to solve employment issues through mediation rather than litigation.
The new role will be tested later this year in pilot schemes in Manchester, Newcastle and Nottingham, before being rolled out nationwide in April 2009. ACAS is still ironing out the final details of how the money will be spent but one area that will definitely see improvement is the free ACAS helpline, which will be modernised.
ACAS new role will cover a range of individual grievance and disciplinary cases, and the service will be involved in trying to mediate in any case likely to be referred to an employment tribunal. A cornerstone of its approach will be a revised code of good practice, which will go out to public consultation later this month.
Employers should be aware that failure to follow the statutory provisions of this code will mean that they will have to pay much higher settlements if cases do ev-Jntually come to an employment tribunal and they lose,
The changes in ACAS' role will be backed up by legislative alterations as part of the Employment Bill; these are also expected to be introduced in April 2009. They have been driven by a report from independent reviewer Michael Gibbons, who has recommended a complete overhaul of the employment dispute resolution system, despite it being last addressed as recently as 2004.
A BERR spokeswoman says the changes will -help employers and employees resolve workplace disputes quickly by obtaining high-quality advice on what to do and get help to do it; reduce the burdens on business, by removing prescriptive regulations and replacing them with a streamlined code backed up with focused guidance; maintain existing employment rights and promote access to justice, and make the employment tribunal system easier to use by enabling quicker decisions on simple monetary claims and providing simpler forms and processes".
Previous failure The last attempt by the government to cut the number of cases coming before tribunal, schedule 2 of the 2002 Employment Act, introduced in 2004, failed miserably. The number of cases coming before tribunals peaked at 130,000 in 2000 then fell steadily: by 2004, only 85,000 cases were heard. But by 2006, that number had risen again to the 130,000 mark. The industry has mixed feelings over whether the latest attempt will be successful, Geoff Dossetter, director of external affairs at the Freight Transport Association (FTA), says: "I welcome any move that will make it easier to resolve employment disputes and make the system simpler for hauliers to understand. I also believe that, at the moment, too many cases are settled on the steps of the employment tribunal after a very time-consuming and expensive process.
"But I query the amount of money being spent on this exercise; the £37m could be better spent addressing other issues that affect the industry, such as the duty on diesel.
Ruth Pott, the Road Haulage Association (RHA) director of employment affairs, also gives the changes qualified support. "I welcome the new initiative and think ACAS does a good job in dealing with employment issues. but for its new role to work, it will have to publicise its activities more widely," she says. "Any-thing that simplifies the dismissal procedures has to be welcomed, but there are some cases where I feel mediation will not work."
Solicitors are also divided on the likelihood of the proposals succeeding. Arwen Vervoots, a solicitor specialising in employment law at Richard Nelson Business Defence Solicitors, believes the injection of .£37m into ACAS will he a good thing.
Formal or informal?
She says: he rigid statutory procedures which came into force in October 2004, rather than reducing the number of expensive tribunal claims, resulted in the opposite. These procedures meant employment problems which could possibly have been resolved informally had to be taken down a formal route. The Employment Bill, likely to come into force in April 2009, will repeal these procedures and place a greater emphasis on the ACAS code of practice. It will also allow tribunals to adjust compensation depending on the extent to which an employer or employee has complied with the code. The role of ACAS will he increased."
Matthew Parkinson, head of employment and workplace issues at Wigan law firm Stephensons Solicitors, says: "The majority of road haulage firms are small to medium-sized businesses, and are not necessarily equipped to deal with complex HR issues. But these firms are not unduly worried about incurring legal expenses, most of them are covered by being members of institutes like the RHA.
"The proposals should go further and introduce a system like the one used in civil cases, whereby small-track cases, such as claims for unlawful deduction of wages. are dealt with solely by mediation run under the auspices of ACAS.
"I believe these new proposals have been introduced to placate businesses dismayed at the complexity of the existing system," he adds, "but I wonder how quickly the £37m will be spent. Some will be used for planning, some for small pilot schemes, but I feel the majority will be set aside to fund the programme once it is established."
Parkinson generally welcomes the involvement of ACAS and points out that every £1 spent on the service saves industry £16. He shares the opinion that the 2002 Employment Act failed employer and employee alike, but also wonders, like many in the industry, whether these new proposals will offer the best solution. I