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Resolving Workplace Disputes

Law Centre (NI) Response to DEL Consultation on Resolving Workplace Disputes:

Executive Summary

1. DEL's consultation on resolving employment disputes sought views on the retention of the statutory dismissal and grievance procedures and on reform of the framework for resolving workplace disputes.

2. Law Centre (NI) favours the retention of the statutory dismissal procedure which offers clarity and certainty to workers and employers alike. The "three step" procedure is now well understood by employers and does not impose a particularly onerous burden on employers; it simply sets out the minimum procedural fairness that should be applied in a dismissal situation. Conversely, Law Centre recommends the revocation of the statutory grievance procedure which is unduly burdensome and complex and which acts as a bar on access to justice for claimants. An alternative to the current statutory grievance procedure should be a Code of Practice.

3. In relation to reform of the overarching framework for resolving workplace disputes we propose reform that harnesses the strengths of the existing structure and utilises existing resources.

4. The fundamental flaw at the heart of the current system for resolving employment disputes is that many claimants do not benefit from personalised advice at an early stage in the process and representation where necessary. Legal Aid is not available and the legal costs involved in instructing a solicitor are usually prohibitive. Other sources of assistance and representation are extremely limited. Most claimants are left to negotiate the tribunal system without advice or representation and are thus at a significant disadvantage compared to represented parties. This impedes access to justice for employees and workers.

5. The current large body of employment law is very complicated and not susceptible to easy simplification. There will therefore always be a need to have a tribunal in which to bring and resolve complex or contentious legal claims. The tribunal is not, however, best suited to the quick disposal of straightforward cases.

6. We recommend a way forward resolving employment disputes that does two things:

(a) makes better provision of personalised advice for and provides access to representation; and

(b) provides easier, simpler and more accessible fora and techniques to resolve disputes – and ensures they are used.

These steps, we believe, will significantly enhance access to justice for claimants; ensure the system is quicker, simpler and fairer for all parties and, in the long term reduce some of the costs associated with the current system

7. Figure 1 at Annex A illustrates our model and the following explains how this framework would work in practice. Our key proposals are explained below by reference to the different stages for resolving an employment dispute. [to see Figure 1, you need to open the PDF document: Executive Summary of Law Centre (NI) Response to DEL Consultation on Resolving Workplace Disputes] 

8. Pre-Claim Stage

What is needed at this stage is access to early advice and intervention as follows:

(a) provision of information about employment law and rights through existing routes e.g. LRA, CAB, etc;

(b) increased emphasis on early conciliation (particularly pre-claim conciliation) and other alternative dispute resolution (ADR) techniques utilising the existing resources and procedures offered by the LRA;

(c) wider availability of personalised and professional advice through the expansion or provision of a funded advice service.

Better advice at an early stage combined with the availability of ADR would result in significantly more cases resolving at an early stage.

9. Pre-Tribunal Stage

A twin-track approach that delivers quicker and more informal systems to deal with cases going forward to tribunal is needed at this stage. We recommend that this can be achieved by a filtering system that allocates claims for pre-tribunal adjudication or early neutral evaluation.

Filtering Mechanism

All claims submitted to the tribunal should go through a filter stage where a tribunal chairman decides whether the claim is suitable for the Employment Adjudicator (see below) or Early Neutral Evaluation. The filter process would be a paper based exercise. It would not create an undue burden on Tribunal chairmen as they are already required to do initial vetting on some claims. Further, in the new system we propose we anticipate that the overall level of tribunal hearings would be reduced, thus freeing up chairmen for this type of work.

Employment Adjudicators

Straightforward claims would be resolved by a system of pre-tribunal adjudication. Employment Adjudicators could be people with a background in industrial relations, human resources or employment law. They do not necessarily need to be legally qualified. Employment Adjudicators could be drawn from the current LRA panel of arbitrators supplemented by panel members from the tribunal. Employment Adjudicator hearings would be short and inquisitorial. Parties would have a full right of appeal to the tribunal if they are not happy with the Adjudicator's decision. To reduce the risk of parties raising unmeritorious appeals, the tribunal should have the power to penalise a party who has behaved unreasonably/vexatiously in appealing a decision either through costs or adjustment of the award. The process could be administered through a separate division of the LRA (in a similar manner to how the arbitration scheme is currently administered).

If the Employment Adjudicator model were accepted, we recommend abolition of the current statutory arbitration scheme.

Early Neutral Evaluation

More complex cases would go forward to Early Neutral Evaluation (ENE) conducted by a tribunal chairman. Parties would appear before the chairman in a short hearing also on an inquisitorial basis. The chairman would be tasked with quickly isolating the central issues in the dispute and giving an evaluation on the likely outcome of a full tribunal hearing. Such evaluation would include an estimation of likely damages. Parties would remain free to avail of LRA conciliation or mediation to resolve the case.

In effect, ENE would build on existing practice in the tribunal system by replacing the current Case Management Discussion hearing with a process better focused on promoting resolution of the claim. It would harness the expertise of chairmen and require minimum training for them.

To reduce the risk of parties simply ignoring the recommendation of ENE, the tribunal should have the power to penalise a party who has behaved unreasonably in pursuing a case to tribunal. If the tribunal's decision is in line with the ENE evaluation and the tribunal considers a party to have acted unreasonably/vexatiously in ignoring the evaluation, the party could be penalised by way of costs or adjustment of the award.

Some cases will not be suitable for resolution through ENE. In such case the chairman could indicate that the issues need to be tested and determined before a full tribunal. In these cases ENE has the added benefit of allowing the chairman to issue case management directions and orders to prepare the matter for an expeditious hearing.

17. Tribunal Stage

Increased access to representation is needed at this stage. Wider access to representation to assist meritorious cases that do have to proceed to tribunal would facilitate increased levels of settlement and the more efficient running of cases. This would save on tribunal costs. This could be achieved either by:-

(i) limited extension of Legal Aid to cover employment law, with an appropriate test for assistance to allow resources to be targeted; and/or

(ii) allocation of increased resources to expand or establish free representation services for tribunal cases (with the option of building on the voluntary sector structures that already exist).

The net result of the above proposals would be to steadily whittle down the number of disputes, through early resolution, acceptance of adjudication or evaluation, and pre-trial settlement so that only the few that require full Industrial Tribunal hearing actually reach that stage.

Post-tribunal the Law Centre strongly advocates the simplification of enforcement of tribunal awards. The procedure for enforcing an award is lengthy and costly. We recommend that the burden of enforcement should be removed from the claimant and transferred to the state in the interests of protecting the integrity of the tribunal system. Alternatively, the current system should be simplified by removing the need for County Court order and reducing or removing claimant fees at the Enforcement of Judgments Office.

Finally, the Law Centre recommends the establishment of an Employment Appeal Tribunal to ensure the tribunal benefits from precedent where the law differs from that in GB and to eliminate the need for costly appeals to the Court of Appeal as is the current arrangement in Northern Ireland.

Conclusion

In the model we have developed we have sought to incorporate the existing structures that we believe can be built on and adapted to create a more coherent and efficient system without incurring the cost that a radical departure would entail. The expertise and experience that exist can be utilised. The bones of a new system are already there and can form the basis of a new interagency approach that is fairer for all.

September 2009

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