The Statutory Dispute Resolution Procedures were introduced by the Employment Act 2002 (Dispute Resolution) Regulations 2004 in October 2004. Although breach of the statutory procedures does not give rise to a free-standing claim, a breach does have potential significant consequences: making a dismissal automatically unfair; barring an employee from bringing a claim; and in most cases affects compensation.

The main aim of the Regulations was to encourage resolution of workplace disputes and reduce the number of employment tribunal claims. As the jury was still out on whether the Regulations were achieving that aim, the government commissioned the independent Gibbons’ review of the options for “simplifying and improving all aspects of employment dispute resolution”.

The jury is now in and has delivered a clear “guilty” verdict. The headline recommendation is “the complete repeal of the statutory dispute procedures set out in the 2004 Dispute Resolution Regulations”. The review’s key message is that “inflexible, prescriptive regulation has been unsuccessful… measures to be used in the future should be much simpler and more flexible”. Other key recommendations include:

  • Production of clear, simple, non-prescriptive guidelines on grievances, discipline and dismissal in the workplace, for employers and employees.
  • Expand employment tribunals’ discretion to take into account reasonableness of behaviour and procedure when making awards and cost orders.
  • Introduce a new simple process to settle monetary disputes on issues such as wages, redundancy and holiday pay without the need for tribunal hearings.
  • Redesign the employment tribunal application process, so that potential claimants access it through a tribunal helpline and receive advice on alternatives when doing so.
  • Offer a free early dispute resolution service, including where appropriate, mediation.
  • Simplify employment law, recognising that its complexity creates uncertainty and costs for employers and employees.
  • Simplify the employment tribunal claim and response forms.
  • Unify the time limits on employment tribunal claims and the grounds for extension of those limits.

See table below for all 17 recommendations.

So, statutory procedures out and mediation in! Well maybe. In light of the recommendations, the government has published a consultation paper on future measures including: repeal of the current statutory dispute resolution procedures; providing better help and guidance to resolve disputes at an earlier stage; and improving how employment tribunals work.

The consultation, which runs until 20 June, is available at http://www.dti.gov.uk/consultations/page38508.html All of the recommendations are sensible. Some are particularly worth endorsing by responding to the consultation – for example, 9, 10, 13 and 17. In some ways the timing of this review is a little late as we are just beginning to see some sensible decisions emerging from the EAT on how the Regulations should apply. But their demise, if that’s what results from the consultation, will go largely unmourned. Let’s hope that Take 2 of the government’s attempts to simplify resolution of workplace disputes will be more successful!

The Gibbons recommendations

  1. Support employers and employees to resolve more disputes in the workplace
    1. Repeal the Dispute Resolution Regulations.
    2. Produce clear, simple, non-prescriptive guidelines on grievances, discipline and dismissal in the workplace.
    3. Ensure there are incentives to comply with the new guidelines, by maintaining and expanding employment tribunals’ discretion to take into account reasonableness of behaviour and procedure when making awards and cost orders.
    4. Challenge all employer and employee organisations to commit to implementing and promoting early dispute resolution, e.g. through greater use of inhouse mediation, early neutral evaluation, and provisions in contracts of employment.
  2. B Actively assist employers and employees to resolve disputes that have not been resolved in the workplace
    1. Introduce a new, simple process to settle monetary disputes on issues such as wages, redundancy and holiday pay, without the need for tribunal hearings.
    2. Increase the quality of advice to potential claimants and respondents, through an adequately resourced helpline and the internet, including as to the realities of tribunal claims and the potential benefits of alternative dispute resolution to achieve more satisfactory and speedier outcomes.
    3. Redesign the employment tribunal application process, so that potential claimants access it through the helpline and receive advice on alternatives when doing so.
    4. Offer a free early dispute resolution service, including where appropriate mediation, before a tribunal claim is lodged for those disputes likely to benefit from it.
    5. Offer incentives to use early resolution techniques by giving employment tribunals discretion to take into account the parties’ efforts to settle the dispute, when making awards and cost orders.
    6. Abolish the fixed periods within which ACAS must conciliate.
  3. C Make the employment tribunal system simpler and cheaper for users and government
    1. Simplify employment law, recognising that its complexity creates uncertainty and costs for employers and employees.
    2. Simplify employment tribunal claim and response forms, removing requirements for unnecessary and legalistic detail, eliminating the ‘tick box’ approach to specifying claims and encouraging claimants to give a succinct statement or estimate of loss.
    3. Unify the time limits on employment tribunal claims, and the grounds for extension of those limits.
    4. Give employment tribunals enhanced powers to simplify the management of so-called ‘multipleclaimant’ cases where many claimants are pursuing the same dispute with the same employer.
    5. Encourage employment tribunals to engage in active, early case management and consistency of practice in order to maximise efficiency and direction throughout the system, and to increase user confidence in it.
    6. Review the circumstances in which it is appropriate for employment tribunal chairs to sit alone, in order to ensure that lay members are used in a way that adds most value.
    7. Consider whether the employment tribunals have appropriate powers to deal with weak and vexatious claims and whether the tribunals use themconsistently.