BECTU's response to UK consultation on dispute resolution August 2001

16 August 2001

BECTU response to the UK DTI (Department of Trade and Industry) consultation on employment disputes resolution.

1. BECTU welcomes the opportunity to comment on the consultation paper. As a trade union with many members working for small employers in areas such as theatre and independent production for film and television we are particularly conscious of the fact that '60% of small employers who are facing a tribunal claim have no internal disciplinary or grievance procedures' (para 1.3). For this and other reasons it is no surprise, from our experience, that 'employees from small organisations account for a disproportionately high share of tribunal applications' (3.5).

2. Our response, as set out below, is geared to the list of specific proposals as summarised at the end of each chapter, focussing on those of most relevance to our own experience.

3. Before commenting on the specific issues raised in the consultation, we wish to express our disappointment that the entire paper is geared to 'employees' rather than the more inclusive term of 'workers'. In the light of the Government's increasing and welcome use of a more inclusive approach in other employment law contexts and of the reference in the ERA to extending individual employment rights to broader categories than employees, we would have welcomed the application of this approach in this paper.

   Resolving disputes at work

   Proposal: Only allowing applications to tribunal once workplace disciplinary or grievance procedures have been completed

4. We certainly support the aim of encouraging all employers to adopt proper procedures (which should at least be in line with the ACAS Code of Practice). In our view, however, this should be achieved through a statutory obligation on employers to adopt such procedures, rather than case by case findings after the event.

5. We support the notion of encouraging the full use of internal procedures and in this respect we believe the current 3 month time limit for applications is too tight (it could be extended to 6 months) and too rigidly applied.

6. However, we specifically oppose a ban on tribunal applications prior to the exhaustion of procedures. These may be protracted and indeed there may sometimes be a dispute on whether the procedure has been completed or not. In our view it is essential that individuals should reserve the right to lodge claims - if only protectively - prior to the exhaustion of procedures. In the specific case of an individual appealing against summary dismissal they may find themselves already off the payroll during the appeal stage and simply unable to risk deferring a claim.

   Proposal:

   • Increasing/reducing awards where the employer or worker had unreasonably failed to take a set of minimum procedural actions
   • Disregarding procedural mistakes beyond these minimum actions if they made no difference to the outcome of the case

7. We believe that employers should simply be required to follow a procedure which at least complies with the ACAS Code. Dismissal without following such a procedure should, in our view, be automatically unfair. In the light of this we would oppose a fallback system of varying awards based on the inferior procedural provisions set out in page 17. We would similarly oppose a system of disregarding procedural mistakes beyond these minimum provisions. The aim should surely be to encourage employers to follow procedures in full.

   Proposal:

   • Additional compensation to reflect the absence of a written statement
   • Removing the 20 employee threshold for including details of the procedures in the written statement

8. We welcome both these proposals, especially in the light of our experience - in respect of many small employers - of a lack of clear, accessible and meaningful procedures. Proposal: Removing ACAS's duty to conciliate in some categories of cases

9. We believe that ACAS should retain its duty to conciliate in matters such as pay, breach of contract and redundancy payments. We see no reason to dilute or remove ACAS's constructive role in these areas.

   Modernising Employment Tribunals

   Proposal: Introducing charges for Tribunal applications

10. We strongly oppose this proposal, which penalises those least able to afford it, and introduces disincentive to pursuing claims in the first place.

11. We believe that the additional administration involved in introducing and managing a charging system might anyway outweigh any revenue forthcoming.

12. For many workers, the use of the Employment Tribunal system is their only remedy for injustices at work. Decision on the pursuit of such claims should, in our view, be taken purely on their merits and not on the basis of whether the individuals feel they can afford to do so. We hope this proposal is dropped in its entirety.

    Proposal: Changing the presumption on awarding costs in weak cases so that Tribunals will have to give reasons why costs are not awarded

13. We see this as an unnecessary and excessive measure which is likely to benefit employers rather than applicants, especially in the light of the recent cost rules (which already enable costs to be awarded in cases pursued without reasonable prospects of success). Workers may need to submit claims without, at an early stage, full knowledge of the strength of their case - eg because employers have key information or because they are operating under a tight deadline for submitting the claim. Extra pressure on costs is therefore entirely unjustified in our view.

    Proposal: Enabling orders for wasted costs directly against representatives who charge for their services

14. We welcome the specific inclusion of trade unions in the 'no-for-profit sector' to which this proposal does not apply.