Don’t expect anyone to shed a tear over the abolition of the dispute resolution procedures – the prescriptive procedures that require an employer and employee to run down a check-list of frustrating steps before they can thrash it out in the tribunal like they both want.Â
The new provisions in a nutshell are:
- The dispute resolution procedures are abolished;
- They’re replaced by a discretion available to tribunals to alter compensation by up to 25% where a relevant Code of Practice hasn’t been followed.
These changes will be implemented sometime in 2009 – although if it were up to me it’d be next year.
Acas have blamed lawyers for the failure of the procedures – but this is nonsense. The procedures did increase the use of lawyers, but this was the fault of their inflexibility. A case I dealt with recently had an employee physically attack another in a canteen. The employer suspended the pair of them, interviewed them and the dozen-odd witnesses, and concluded that one employee (who had a reputation and indeed a criminal record for unprovoked violence) was solely to blame. He held a disciplinary hearing and dismissed for gross misconduct. Applying any standard of common sense, this was a fair dismissal. But the failure to reduce the disciplinary charges to writing, and send them together with a lot of other nonsense to the employee prior to the disciplinary hearing, made the dismissal automatically unfair. From now on, this employer isn’t going to do a damn thing without calling up his lawyers first, as his ability to deal with his employees in a fair and transparent way (the actual policy behind the procedures) has been utterly destroyed.
With these changes, and the continual increase in mediation, Acas’s role and power in employment disputes is getting steadily greater. I have some reservations about Acas:
- The advisors on their telephone helpline are mostly good, but some live in a complete cloud cuckoo land, replete with bosses and workers engineering social nirvana through the use of staff handbooks and consultation meetings – this translates into incorrect advice, motivated by the organisation’s policies;
- Their conciliators – who ring up both sides in an employment dispute to attempt to persuade them to settle – are judged by the number of cases they successfully conciliate, but their refusal to give legal advice on the merits of a party’s case means that often they just badger people. “Ooh, go on, you’re only Â£200 apart” – that party nevertheless being Â£1000 down on what the tribunal award will certainly be doesn’t matter. This isn’t everyone at Acas, but it’s a fair description of at least a third of the conciliators I’ve dealt with. This leads to injustice.
I’ve a feeling it’ll be a very different world in employment law in a few years, but will it really be any better than it was pre-2004?