Workplace Disputes Consultation: The Results are Now In

Consultation Response Published At Last

We have already had advance notice of some aspects of this but at long  last the government have published their response to the Resolving Workplace Consultation. What will this mean to employer? The main proposals are:-

Mediation
The government have consulted on how mediation can be better utilised by businesses given both the proven business benefits and stresses on the tribunal system caused by the volume of employment claims. There had been some talk of whether mediation should be a precursor to litigation as is the case with commercial disputes. The government have ( rightly in my view) not gone that far. However, their final response perhaps does not go far enough.

The proposal is to explore with large businesses within the retail sector whether and how they might be able to share their mediation expertise with smaller businesses in their supply chain. The government will also pilot the creation of regional mediation networks through the provision of training to a number of representatives from local SME’s.

Quite how this is going to work is unclear. There are some very good and powerful case studies in the retail sector and this sector may be ahead of the game. However why one sector rather than others or a more general approach has not been adopted is a little surprising. Also quite how good practice will be pushed down the supply chain is also unclear; attempts to do similar things in relation to diversity and equality have not really worked and simply lead to tick box type approaches.

Extending training might be very good for some but the real challenge is to raise awareness of the business benefits more generally. Training may well be one way of doing this but it strikes me as an expensive approach. Also, unless those trained have an opportunity to really practice their skills on a regular basis, the training will not be utilised effectively in the workplace and the awareness raising will be to a very limited audience.

Settlements
There are some proposals to clarify a number of technical issues regarding compromise agreements. In addition they are to be renamed as settlement agreements; one has to ask why and how does that make any difference whatsoever!

Nick Clegg’s idea of “protected conversations”  has been included with confirmation that this proposal will be the subject of further consultation. It does of course remain to be seen what ultimately comes of this but this whole idea seems ridiculous to me. Employers already have the option to have “without prejudice” conversations which are protected if done in the right way so what the difference will be is difficult to understand. However, more fundamentally if there are genuine performance issues then these should be raised  openly and honestly with employees; line managers should be encouraged to do this ( with the right training and support) rather than discouraged, The result is likely to be that line managers will only have those more challenging and difficult conversations under the cloak of protection, the scope of which is likely to unclear in any event.

Unfair dismissal qualifying period extended to two years
This proposal had already been announced. Most commentators agree that this will make little difference in practice given the ease at which and number of claims, for example discrimination, which can be brought from  day one of employment anyway.

A further review of the tribunal rules and changes to employment legislation.
Further consultation on procedural rules in addition to calling for further evidence on no fault dismissals for micro businesses and introduction of fees for anyone wishing to take claims to an Employment claims. This options here are proposals to introduce an initial issue fee and a further fee prior to a hearing. Alternatively, the introduction of a threashole of £30,000 so that those seeking an award above this level will pay more to bring claims.

In addition consideration will be given to whether the 90 day consultation period for collective redundancies should be reduced.

Early conciliation
A requirement that claims be issued with ACAS first. This enables the parties to be offered pre-claim conciliation before issuing claims at an Employment Tribunal. This proposal is welcome as early conciliation has already proved to be helpful in some cases.  

Financial penalties
 A discretionary power for tribunals to levy financial penalties on employers who breach employment rights.

Rapid Resolution
Further consideration to introducing a quicker, cheaper system to resolve low value straightforward claims.

Whistle blowing claims
Closing a loop-hole in the law that currently allows employees to claim that breaches of their own individual employment rights is a “protected disclosure” which can form the basis of a whistle blowing claim. This allows vexatious claims with potentially unlimited compensations from day one of employment. This a very welcome and sensible change as the legislation was never intended to give such protection.

The Final Score

Vince Cable  has indicated that these measures will deliver £40m a year in benefits for employers and overcome barriers to employers growing their businesses. There is no evidence to support that employment regulation does in fact deter growth and it is far more likely that the economic climate is the cause here. Although some of these proposals are sensible and welcome, there is still little detail on many proposals with yet more consultation to come (so the outcome of consultation is yet more consultation!). My overall view is that this is all a bit too little too late. Most disappointingly,  an opportunity to really push mediation as a cost-effective option which can provide real business benefits for employers has not been grasped as much as it could have been.

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