In June 2007, Shepherd and Wedderburn conducted a survey amongst clients and contacts of the firm on the issues of the statutory disciplinary and grievance procedures ("SDGPs") and dispute resolution in the workplace generally.
We received 144 responses. The majority of respondents who completed the questionnaire came from medium or large organisations (with over 250 employees) and represented a wide range of sectors.
The challenge for legislators
With the Government set to announce measures to replace the SDGPs in November, the challenge will be to put in place a system that is more user-friendly than the SDGPs for employers (and employees) but which is an effective filter for disputes before they reach the tribunal system and result in costly litigation.
According to our survey, mediation is a popular alternative amongst employers. However, establishing a national system of mediation would be a bold and expensive step unless the parties are left to pay all the costs themselves.
Summary of findings
Abolishing the SDGPs
- Approximately 54% of respondents would like to see the SDGPs abolished.
- 70% of respondents would like to see the SDGPs replaced with a compulsory dispute resolution mechanism, but there was no clear consensus on what form the replacement should take.
- 47% of respondents favoured compulsory mediation. However there was a wide diversity of opinion about the types of case in which pre-Tribunal mediation should be compulsory.
Surprisingly, therefore, whilst the SDGPs themselves have been unpopular, the principle of having a mandatory mechanism for resolving workplace disputes before they reach the employment tribunal appears to have gained popularity since the SDGPs were introduced in 2004.
ACAS services and other existing dispute resolution methods
- 75% of respondents were aware of ACAS's duty to conciliate in disputes before tribunal hearings.
- Less than 30% had actually used ACAS's free conciliation service.
- Similarly, 72% of respondents were aware of ACAS's free arbitration scheme for certain types of claim but only 12% had used it.
- 82% of respondents said that they would use or were likely to use mediation if a free service was available on a voluntary basis before a tribunal complaint was received.
The current voluntary dispute resolution services that are offered free of charge by ACAS are of marginal relevance for most employers. While a majority of respondents believe they would use a free mediation service, the degree of take up in practice is questionable based on the low level of use of ACAS services.
Tribunal claims and penalties
- 50% of respondents said they had faced a tribunal claim which they considered to be spurious, frivolous or ill-intentioned.
- 75% indicated that they believed giving tribunals powers to impose financial penalties for failing to mediate before bringing such claims would deter employees from doing so.
- 71% of respondents were in favour of employees being at risk of financial penalties, such as a costs award, for pursuing spurious, frivolous or ill-intentioned claims, while only 33% thought that employers should face similar penalties should they fail to successfully defend a claim.
- 92% of respondents thought that low value or straightforward claims, such as claims for deduction from wages, should be fast-tracked to be heard either at a hearing by a chairman sitting alone or even determined on paper without a hearing.
Employment tribunals have the power to make costs awards against claimants who bring spurious, frivolous or ill-intentioned claims but in 2006-2007 the average costs award was only £2,079. Therefore the disincentive to ill-intentioned claimants is not great, nor do the amounts awarded against claimants generally match the expenditure incurred by the employer.
Certain complaints (including deduction from wages, breach of contract, redundancy payments, and failure to inform and consult under the TUPE Regulations) can be heard by a chairman sitting alone but are often heard by a full tribunal, either because the local tribunal considers it appropriate or because the complaint contains other claims which cannot be heard by a chairman alone. Therefore the fast-tracking powers of employment tribunals tend to be under-used.
Disposal of claims without a hearing is usually limited to situations where a claim fails to get through the initial acceptance procedure because of technical deficiencies in its presentation or because it is out of time.