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What about the workers?
Page 38
Page 39
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When all else fails grievances are handled by Employment Tribunals. But will a proposed change in the law reduce their
workload? Mike Sherrington reports.
Recent attempts by the government to cut the number of cases coming before Employment Tribunals have largely failed.The idea was that by introducing statutory discipline and grievance procedures, problems would be resolved in the workplace and there would be no need forTribunals.
Now the Department of Trade and Industry has finished public consultation on proposals by independent reviewer Michael Gibbons which urge scrapping statutory procedures and replacing them with workplace mediation.
As well as getting rid of statutory procedures Gibbons has recommended thatTribunal forms should be simplified: that Tribunals should have more powers to award costs (currently each party pays their own) and that a free mediation service should be provided to employers to help sort out workplace problems.
The statutory procedures in Schedule 2 of the 2002 Employment Act were only introduced in 2004. They call for a three-stage disciplinary procedure as the minimum that may be used if an employer is thinking of dismissing an employee or imposing a penalty such as suspension without pay, demotion,loss of seniority or loss of pay. These procedures also require an employee to go through a grievance hearing before bringing a case for constructive dismissal or discrimination.
The lawyers we spoke to agree that the statutory procedures have not worked. Dermott Thomas, a partner at Barker Gotelee, says: "In theory it is right that disputes should be resolved in the workplace if at all possible, but the way the legislation is drafted is too prescriptive and has led loan increasing amount of litigation over procedures.
Procedural lapses
"Now a large number of Tribunal cases succeed purely because correct procedures have not been carried out," he reports. "If this is the case the Tribunal has the authority to increase the final settlement by up to 50%."
Employment Tribunals are becoming more like courts, and this is a departure from the original intention that individuals should be able to present their cases by themselves.
Individuals do still bring their own cases and Mark Kelly, a partner at Rowley Ashworth. says they tend to get a more sympathetic hearing from the Tribunal chair, who takes into account their lack of legal expertise. Such individuals can get help from the Citizen's Advice Bureau or pay a solicitor to help put together their claim. Alternatively they look at their home insurance policy, which might pay for legal representation.
The other option for union members is to involve their union. Mark Kelly, whose firm works for Unite T&G, says: "Union members will be represented by either a full-time union official, a solicitor or a barrister who will bring professionalism to the Tribunal hearing,but the real advantage of union membership is that members can use either a lay official or a full-timer to sort things out before things get as far as a Tribunal." It could well be financially beneficial for an individual to settle before going to a Tribunal because employees rarely get their jobs back after hearings and the settlements awarded tend to be very low— the average is about £3,000.
There are a number of reasons for this. Employment Tribunals deal with many cases involving non-payment of wages where settlements are likely to be in the hundreds of pounds. Claimants are required to declare any income that offsets such losses so any money they earn between leaving the firm they had problems with and the Tribunal hearing is deducted from the final settlement.
Because a number of decisions to dismiss reflect what would have happened in any case these settlement can be very small too, involving things such as non-payment of notice period. In any case, there is a cap of £55,000 on unfair dismissal claims.
Rare success On top of this, the chances of success atTribunal are not great. Dermott Thomas says: Only a very small minority of cases are successful and a good proportion succeed because of a failure to carry out proper disciplinary or grievance procedures." One reason for this is that in many cases settlements are made, sometimes literally on the court steps, before Tribunal proceedings are started.
This is not to say that Employment Tribunals do not have their place.There have been some groundbreaking decisions affecting the road haulage industry. One such is Sanderson and Griffin vs Exel Management Services, vvhich solicitor Rowley Ashworth argued would be a
test case for 6,000 road haulage drivers..lbe Employment Appeals Tribunal overturned a Tribunal hearing and accepted that drivers, because of the nature of their work, did not work fixed hours so when it came to calculating holiday pay the average number of hours worked in a 12-week period should he used.
One thing is certain — the Employment Tribunal system will continue for the foreseeable future,and not only for high-profile, ground-breaking cases. It is debatable whether the recommendations of the Gibbons Report, which are likely to become law next year. will actually reduce the number of cases. •
CONTACTS
ACAS handbook Discipline and Grievances al Workwww.acas.org.uk or call the ACAS helpline: 08457 474747 DTI www.dti.gov.uk
Employment Tribunals
www.employmenttribunals.gov.uk/detau It. asp or call the helpline: 0845 795 9775