Sacking the tribunals

The government is planning to repeal the statutory dispute resolution procedures. There was no disagreement in the practitioner group set up by the Department of Business, Enterprise and Regulatory Reform (BERR), chaired by Michael Gibbons and including representatives of the CBI and TUC — the regulations are not working and should go.

Although intended to ensure that more disputes are settled in the workplace, the regulations have instead had the effect of formalising disputes that would have been better dealt with informally. The three-step statutory procedure has proved surprisingly complex to apply and has pushed employers to seek legal advice at an earlier stage. As a result, the number of formal disputes has risen — the total number of cases brought to employment tribunals went up by 15 per cent last year.

The Gibbons review finds that the average cost to employers of defending an individual claim at an employment tribunal is around £9,000. This compares with a median award in unfair dismissal cases of just over £4,000. Many claimants suffer adverse effects on their health, strain on their relationships and damage to their career prospects.

No wonder Gibbons comments that ‘the overwhelming view of those the review spoke to was that tribunals are increasingly complex, legalistic and adversarial making them a daunting experience for many’.

So what is to be done? Gibbons advocates moving towards greater reliance on a voluntary approach and making more use of alternative dispute resolution processes in order to settle disputes early. As the review makes clear, this will involve driving up awareness of and demand for mediation by both employers and employees, promoting their benefits and encouraging culture change.

The business case for mediation is compelling. The whole process is shorter and less costly than tribunal proceedings. It is also confidential, so parties are less likely to be trapped by positions adopted earlier. The problem-solving approach to complaints reduces disruption and minimises future problems. The process is seen to be fair, since both parties contribute to finding a solution, and employees are more likely to stay in employment.

But if mediation is to grow in importance as a means of resolving workplace issues, the business case will not be enough. Some employees and trade union representatives will need to be persuaded that many claimants will be better off not pursuing their case at a tribunal. The government is proposing to strengthen the advice given to potential claimants and respondents.

With its emphasis on fairness, practical problem-solving and informality, mediation can be seen as reflecting the aspiration which underpinned the setting up of employment tribunals more than 40 years ago. Perversely, employment tribunals themselves appear to be becoming more closely assimilated into the mainstream legal system.

Some employers will train their own mediators, while others — small firms in particular — will be dependent on external sources. The government will also need to give ongoing political support to the Gibbons agenda if it is not to suffer the fate of earlier, unsuccessful attempts to reform the employment tribunal system.

Interest by employers in mediation is part and parcel of good people management. Its successful use relies on managers’ ability to identify emerging problems and take steps to deal with them. Mediation is not a ‘quick fix’ but its wider use by employers will contribute significantly to improving people management practices in both public and private sectors, with consequent benefits for productivity.

Mike Emmott, Adviser, Employee Relations, Chartered Institute of Personnel and Development.