Setting the agenda for the resolution of employment disputes in the future – Vince Cable speech to the EEF this morning

23 November 2011

The Secretary of State’s speech this morning setting the blueprint for what is being described as one of the biggest shakeups of employment law in a generation is very much to be welcomed. In one sense it brings to an end much of the pretty absurd and unnecessary speculation around what the Government would actually be proposing as a way forward for the reform of our system of workplace disputes. The selective leaks were helping nobody, and just created a climate of uncertainty.

True, much of the detail remains to be worked out, but there are ideas and proposals which may make the system more efficient and cheaper, which will certainly help businesses and employees alike.

The new enhanced role for ACAS who are to become a sort of “gateway” through which would be litigants must pass before they can proceed with a claim, requires more clarity. In particular, what precise role will ACAS play – are they simply going to be informing the parties as to what may happen if claims proceed to the Employment Tribunal, or are they to go further and provide initial advice, in which case problems may arise. The Government may want to stay with the line that ACAS’ role will be “information only”, but how easy is that going to be in practice?

There is also the question of resource. ACAS, just like any other Government body, is under great financial pressure. If they are going to have a considerably enhanced role, they are going to need to be adequately resourced. Unfortunately, we have seen no commitment in that respect thus far. This needs to be spelled out soon, if the proposed new system is not to lose credibility.

Whilst the concept of having “Protected Conversations” is not currently well understood, this could in fact make a big difference as to how parties can speak to one another to seek to resolve matters without having to go through the need for outside mediation, conciliation or even litigation. Again, the detail will need to be worked through, but the concept of allowing employers and employees to sit down together at an early stage, without fear that anything said may subsequently be used in evidence, must be right, and is only an extension of what most parties would want to happen in any event.

What was also apparent from this morning’s conference is that the Government is hugely keen on encouraging mediation in the world of employment disputes. Take up has been relatively poor thus far (although it is being used) but in the future this is likely to be seen as much more of an alternative to litigation than is currently the case. This may be seem a strange environment for parties to enter at present, but in due course, it may come to be much more commonplace.

The whole concept of introducing fees into Employment Tribunals is something new, albeit trumpeted widely in the past few weeks. Of concern is the fact that they may be being introduced on a novel basis – namely not to help defray the costs of the tribunal system in dealing with any particular claim, but rather to serve as a disincentive to an employee to bring a claim, some might see as being “unmeritorious”. There are obvious implications for access to justice here, and the issue is bound to be controversial.

This is just the start of the process, but the significance of this morning’s announcement is not to be underestimated. Have no doubt; the next few months are going to see substantial change in the area of workplace dispute reform.

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