Response to consultation on resolving workplace disputes

Summary

We responded to the Consultation Paper on Resolving Workplace Disputes, jointly published by the Department for Business Innovation and Skills and the Tribunals Service, because a significant proportion of these disputes involve equality and discrimination issues - nearly one in five in 2009/10. Under the Equality Act 2006 the Commission may advise government about the likely effect of a proposed change of law.
In our submission, we have drawn on the findings of our Triennial Review as well as analysing other data sources to identify differential impacts of the proposals on people with a protected characteristic.
The Commission supports the stated purposes of the review, which include removing barriers to recruitment, encouraging early resolution of disputes and enabling swifter disposal of Employment Tribunal cases.
We propose that greater use of the Codes of Practice on Employment and Equal Pay would help avoid disputes or support early resolution.

We support the use of conciliation where appropriate, including in large multiple claims but note that often claimants in discrimination cases are seeking systemic change as an outcome of their case and not just financial compensation for their own loss. Any conciliation process needs to allow for this, especially in the context of new tribunal powers to make recommendations for the wider workforce.

We note that there are generally high levels of satisfaction among both employers and employees with the tribunal system, and express concern that the proposals being considered, especially if combined with legal aid cuts, will reduce access to justice. We note that already individual claimants are much less likely to be represented than respondent employers.
We do not support the introduction of deposit orders or increased costs orders as we contend these will have a disproportionate impact on access to justice for the low paid. Women and young people are over-represented among the low paid, as are some ethnic groups.
We suggest that in relation to settlements, the Scottish judicial tender system should not be adopted without further investigation , especially as it is confined to monetary awards and would not be suitable for the range of remedies appropriate in employment discrimination cases.
We express concern about the proposal to withdraw expenses from claimants witnesses as this could deter claimants of limited means from pursuing their claim.

The Government has decided to introduce user fees and part of the rationale for this is that it can see no fundamental difference between the courts and the employment tribunals in the sense that both consider cases between individuals (party v party disputes). We take issue with this premise, which underpins many of the specific proposals for new tribunal procedures. Employment rights claims generally involve an imbalance between an individual and an organisation.
We also note that some of the strain on the Employment Tribunal system has been caused by the rise in unfair dismissal claims due to the recession, and the volume of equal pay claims.

In response to the Governments proposal to increase the qualifying period for unfair dismissal protection, the Commission notes that no evidence has been adduced to show that this will have the intended effect of increasing recruitment levels. Indeed it may have the unintended consequence of giving rise to more discrimination claims.
We present detailed data analysis that shows some differences in length of service for different groups. We note that there is a long term trend of men on average having longer service than women although these statistics have been converging slowly. We also note that if the statistical evidence shows a small but persistent disparity between the comparator groups that may meet the disadvantage test for indirect discrimination.
We say that if this proposal is adopted we would expect the Government to monitor the effects.
The Commission supports the proposal to introduce a system of financial penalties for employers found to be in breach of their obligations, as this would help improve compliance and be consistent with the Governments obligation to provide remedies that are effective, proportionate and dissuasive. We are also keen to see effective use being made by tribunals of their new power to make recommendations affecting an employers organisation as a whole.

Last Updated: 06 May 2011