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These pages do not apply outside the United Kingdom.
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This page outlines proposed changes relating to resolution of employment disputes. The proposed changes would not necessarily apply to Northern Ireland.
Apart from the Employment Act 2008, the main source for these proposed changes is the Government response to the Discrimination Law Review (July 2008): www.equalities.gov.uk/publications/Government_Response_to_the_consultation.pdf
Framework for a Fairer Future - The Equality Bill (June 2008): www.equalities.gov.uk/publications/FRAMEWORK%20FAIRER%20FUTURE.pdf
Green Paper (June 2007): www.communities.gov.uk/index.asp?id=1511245
More on my Single Equality Act page.
This will repeal the current statutory dispute resolution procedures, probably from April 2009. Tribunals will instead have power to adjust compensation if the employer or employee unreasonably fails to comply with (normally) the ACAS Code of Practice on disciplinary and grievance procedures.
At present, the rules require written notification of the issue to the other side, a meeting between the two sides, and (if appropriate) an appeal. The tribunal can increase or decrease an award of compensation where the procedures are not complied with. In practice it has been found that the procedures tend to lead to disputes becoming formalised, and lawyers getting involved, at an earlier stage than had previously been the case.
The changes follow recommendations by the Gibbons review, and a subsequent consultation document issued by the government setting out measures to take the review forward (www.berr.gov.uk/consultations/page38508.html). The TUC has welcomed the change, saying it will ensure that workers who have been caught out by the complicated process of applying to take a grievance to a tribunal and who have made minor technical mistakes along the way are no longer barred from getting their cases heard - TUC Press Release 7/12/07 (link to TUC website).
Links:
The draft new ACAS Code, subject only to approval by Parliament, is at www.acas.org.uk/index.aspx?articleid=2114.
The legislative changes are in the Employment Act 2008 - www.opsi.gov.uk/acts/acts2008/ukpga_20080024_en_1.
In its response in summer 2008 to the Discrimination Law Review, the Government announced some proposed changes to strengthen enforcement of the DDA. These are to be included in a new Equality Bill expected to be introduced in the next session of Parliament.
The main source for these proposed changes is the Government response to the Discrimination Law Review (July 2008): www.equalities.gov.uk/publications/Government_Response_to_the_consultation.pdf and Framework for a Fairer Future - The Equality Bill (June 2008): www.equalities.gov.uk/publications/FRAMEWORK%20FAIRER%20FUTURE.pdf
Green Paper (June 2007): www.communities.gov.uk/index.asp?id=1511245
More on my Single Equality Act page.
The new Equality Bill will give employment tribunals a wider power to make recommendations in discrimination cases (Framework for a Fairer Future; and Government response to the Discrimination Law Review, July 2008, para 6.2ff).
At present a tribunal can only make a recommendation which directly benefits the individual who brought the claim. Often though he will have left the organisation, so the Tribunal cannot make a recommendation. Under the new rules a tribunal will be able to make a recommendation even if it only benefits the wider workforce. This should help to prevent similar types of discrimination occurring in the future. An example might be a recommendation for awareness training in communication disabilities.
If the employer does not comply with a recommendation and a further claim is made, the tribunal will be able to take the earlier recommendation into account, which may result in a tougher ruling. Tribunal judgments, including recommendations, should in due course be available on the Tribunal Service's website so one can search for previous recommendations made to an employer.
The Government has been consulting on some practical points related to the extended power in Section 4 of the BERR Dispute Resolution: Secondary legislation consultation - www.berr.gov.uk/consultations/page46889.html
The Government will also explore how it can ensure employers learn from tribunal judgments by looking to spread learning from individual cases in a systematic way.
This extension of the power to make recommendations was recommended by all the former equality commisions, as something that would significantly improve the impact of cases on employers' poor practice (pages 12-13 of the DRC's A Framework for Fairness Response (on DRC website). The Equality and Human Rights Commission recommended that the new equality act should give employment tribunals in Great Britain certain powers which already exist in Northern Ireland, namely to recommend that the respondent 'take within a specified period action appearing to the Tribunal to be practicable for the purpose of obviating or reducing the adverse effect on a person other than the complainant of any unlawful discrimination to which the complaint relates' - page 41 of the EHRC's Discrimination Law Review response (link to Word doc on EHRC website).
The Government will consider the case for introducing representative actions in discrimination. It wants to see the findings and recommendations of the Civil Justice Council in this area - the Council is currently gathering evidence on the case for introducing representative actions. The Government recognises that currently, individuals who have been discriminated against have to shoulder the burden of bringing a claim. This carries financial, and emotional costs, as well as reputational risk. However, some discrimination is systemic and a number of employees may face the same kind of unfair treatment. Representative actions would enable bodies such as trade unions or the Equality and Human Rights Commission to take cases to court on behalf of a group of individuals as a single claim. (Framework for a Fairer Future; and Government response to the Discrimination Law Review, July 2008, para 6.45ff).
The DRC had recommended in A Framework for Fairness Response (on DRC website) (pages 5-7), that nterested parties such as trade unions should have the power to institute proceedings in their own name (or jointly with individuals) where there is a common problem affecting a number of people. This could help tackle 'group discrimination' and dismantle systemic discrimination. It said that representative actions can be useful for people who are unwilling or unable to bring claims themselves. The European and Human Rights Commission also supports representative actions "for certain types of cases" and subject to appropriate safeguards - pages 37-38 of the EHRC's Discrimination Law Review response (link to Word doc on EHRC website).
The former DRC, in its A Framework for Fairness Response (on DRC website), pointed to widespread non-compliance with the DDA and made the following further recommendations, which have not as yet been accepted by the Government:
The European and Human Rights Commission also recommends that the results of employment tribunal and county or sheriff court discrimination cases should be easily accessible by members of the public. This is because reputation is a significant factor in influencing decisions by employers to avoid discrimination and to adopt good equality practice. As mentioned above, the Government does now propose that Employment Tribunal decisions should be made available on the internet. The EHRC said also that consideration should also be given to a system to refer findings of unlawful discrimination to any relevant licensing or qualification body. Pages 42-43 of the EHRC's Discrimination Law Review response (link to Word doc on EHRC website).
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Last updated 14th December, 2008
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