GMB

RESPONSE TO CONSULTATIONPAPER

"ROUTES TO RESOLUTION:IMPROVING DISPUTE RESOLUTION IN BRITAIN"

[DEPARTMENT OF TRADE ANDINDUSTRY, JULY 2001]

Introduction

Thisresponse is based on the Consultation Paper and on information given inbriefings, which we have found helpful in understanding the Government'sproposals.

Howeverwe record our concern that the Government has issued such a vague set ofproposals which require further explanation before they can be grasped andassessed. GMB is also concerned thatsome of the explanations differ from the Consultation Paper. At times we have been uncertain as toprecisely what we are invited to comment on.

Wesuggest that before reaching a decision on any of its 20 or so proposals, theGovernment should firm up its ideas and issue a second Consultation Paper. Respondents could then assess the details ofthe proposals.

Weare very concerned that the Government is advancing proposals so soon afterbringing into force the new ACAS Code of Practice (September 2000) and newTribunal rules of procedures which include significant changes on costs (July2001). We also note that the LeggattReport "Tribunals for Users: One system, one service" has been in theGovernment's hands since March 2001, yet this Consultation Paper totallyignores the Report's analysis and recommendations.

GMBcalls for:

Theproposals on substantive law to be abandoned in favour of a complete review ofunfair dismissal law

Theproposals on access to justice and tribunal procedures to be postponed pendingGovernment consideration of the Leggatt Report

Theremoval of the small employer exemption from statutory recognition law

Theintroduction of a common time limit of 6 months for lodging tribunal complaintswith an extension of the time limit on grounds of justice and equity

Theallocation of ACAS resources to sectors such as hotel and catering whereemployment practices are particularly in need of reform

September 2001

Chapters1 & 2: Introduction and Setting the scene

Wenote that at most 25% of potential complaints result in Tribunal claims. Last year there were only 247 costsawards. Even the DTI estimates frivolousor vexatious cases at a maximum of 6% of all Tribunal cases.

TheBackground Paper reports that increases in the number of Tribunal complaintscould be attributed to changes in the structure of the economy and compositionof the labour market:

Discriminationcases were related to increasing female participation in the labour market

Unfairdismissal cases were related to growing employment in small enterprises

Redundancycases were related to the decline in manufacturing employment

Unlawfuldeduction from wages and other new jurisdiction cases were related to thedecline in trade union membership.

TheGovernment may well find it "worrying" that workers resort tolitigation [paragraph 1.3]. But thereis no evidence that significant numbers of workers are pursuing claimsrecklessly or without justification.

Rather,employers are reaping what they have sown.They have pursued the individualism of employment relations, yet are notprepared to accept the litigation such a policy inevitably produces.

GMBsees the benefits of workers using grievance procedures and appeals stages indisciplinary cases. We encourage ourmembers to do so. However as WERSpoints out, employees are reluctant to raise a grievance without support. The right to be accompanied does not protectthe worker in non-unionised workplaces after the hearing has taken place. Even where fear of victimisation does notexist, workers may lack confidence in grievance procedures as a vehicle forchange [WERS]. Whereas 93% of employeeswho experience a problem do try to resolve the issue, significant numbers couldnot take any action for fear of losing their job [Table 2 of background Paperand paragraph 2.3 of the Consultation Paper].

WERSsays that trade union recognition reduces dismissals and other disciplinarysanctions by half. The problem of aninability to resolve disputes in the workplace arises from the often primitivepractices of small employers. Those arethe same employers who are exempt from the recognition provisions of Schedule1A of the 11992 Act. It would help theGovernment's avowed objective if it were to remove that exemption.

Forexample, WERS reports that in hotels and restaurants almost two-fifth of allemployees had left their jobs in the preceding twelve months (eight times theaverage in electricity, gas and water).The average workplace in hotels and restaurant dismissed "a quiteastonishing 5.9 employees in every 100 in the preceding year", a rate overthree times higher than that in any other industry.

Itis important to record that procedures themselves do not make adifference. WERS points out that thatthere were no differences in the rate of disciplinary sanctions betweenworkplaces with and workplaces without a disciplinary procedure. So there is no reason to believe thatpressing employers to have or use disciplinary procedures and workers to usegrievance procedures would improve the observance of legal rights at work. The Government's pursuit of procedures perse simply fails to address the real issue.Litigation is the twin of individualism. Raising barriers to applicants may discourage some, but only atthe cost of injustice and the encouragement of bad workplace practices.

Chapter3: Resolving disputes at work

Proposal1

Onlyallowing applications to tribunals once workplace disciplinary or grievanceprocedures have been completed

GMBresponse

Weneed first to clarify what this proposal actually means. The above wording is taken from the summarybox on page 21 of the Paper. Para. 3.11of the Paper refers to tribunal applications being allowed only "onceworkplace procedures have been completed".

Neitherformulation means what it says. TheGovernment does not intend to bar IT1s where employers have dismissed withoutfollowing a disciplinary procedure.Such a monstrous law would encourage employers to dismiss summarily,without any investigation let alone a hearing.It would completely undermine legal rights and good industrialrelations.

Rather,the Government, in pursuit of its belief that it is reasonable to expectemployers and workers to speak to each other, seemingly intends to barapplications

where an applicant has declined their employer's offer ofa hearing before being dismissed or disciplined, or has not appealed against adismissal or lesser disciplinary sanction where they have not been offered ahearing;

and

where an applicant brings a case (not based ondismissal or disciplinary sanction) without completing an internal grievanceprocedure.

Thefirst problem with such a proposal is its complexity. We understand that the legislation would require an applicant toraise a grievance, seek to discuss it with their employer and, if dissatisfied,raise an appeal.

Soapparently in non-disciplinary cases the applicant must first exhaust thegrievance procedure. This would placean enormous burden on workers, far beyond an obligation to seek to discusstheir problem with their employer. WERSreports that in the one in twelve workplaces without grievance procedures,managers overwhelming explained that workers with problems "come to me andwe sort it out". The DTI isproposing to impose on workers a burden that is alien to their employer.

Indismissal and other disciplinary cases, it seems that the employee must seek oraccept an employer's offer of a hearing or a discussion or an appeal. How would these terms be defined?

Takethe example of an employer who without warning calls in an employee, accuseshim/her of some wrongdoing and then says "You're sacked", withoutgiving the employee the chance to respond.Apparently the worker, on lodging the IT1 form, would be sent back totheir employer to ask for the opportunity to appeal. But would it make a difference if the employer had allowed theemployee to make a short protest and they had no appeals procedure in place?

Isit the proposal that an employee would have to appeal against a discriminatorydisciplinary sanction short of dismissal?If that appeal succeeded, would the employee still be able to complainof the original sanction and seek compensation for injury to feelings? Would there not be a risk that theGovernment could be accused of forcing workers into a situation in which theywere exposed to an aggravation or repetition of the discriminatory act of whichthey originally complained?

Constructivedismissal cases

TheGovernment has not explained how its proposal would apply to cases of unfairconstructive dismissal. Requiringemployees to use grievance procedures before resigning would amount to a majorchange to substantive law: Seligman & Latz Ltd v McHugh (1979).

Manyconstructive cases concern events that take place over a period of time. Take the case where the grounds forcomplaining of CD had built up over a period of time and a series of incidents the "last straw" scenario.If the employee had previously used the grievance procedure andreceived promises of improved conduct on the part of the employer, would he/shehave to use it again in relation to a repetition of the incident? Would it matter how much time had elapsedbetween use of the grievance procedure and the last straw? How would Tribunals be required to approachsuch cases?

Thesame problem could easily arise in cases other than unfair dismissal. Imagine an employer who repeatedly underpaystheir workforce. The workers use thegrievance procedure and on each occasion receive the balance, albeit aconsiderable time later. Are theyobliged to use the grievance procedure on each and every occasion, or couldthey rely on having done so previously?

Exceptions

Paragraph3.11 [unlike paragraph 3.12 which deals with a different issue] of theconsultation paper does not mention any exceptions to this proposal. Apparently however an applicant whojustifies a failure to seek or accept the offer of a hearing would be allowedto proceed with their claim.

Itis difficult to comment in the absence of a clear definition of this proposedexception. We understand thatexceptions would include cases where the employer had bullied, intimidated,harassed or threatened violence towards the worker.

Howeverit seems it would not be enough for the employee to say that the mannerof the dismissal (such as a summary dismissal without a hearing) was sotraumatic that they could not bear to face the employer again. Nor it seems would it be enough if theemployer dragged out the procedure and delayed a hearing, adding to the stresson the employee. Yet on occasion, theemployer's conduct is so unacceptable that, even though it does not fall withinthe mooted exceptions, lodging an IT1 is the only acceptable alternative to aballot for industrial action.

The Government's determination to forcepeople into procedures they do not wish to use requires an extremely narrowexception. But that merely serves todemonstrate the unreasonableness of the proposal in the first place.

Tribunalprocedures

Anobvious concern is how workers are to be told of this requirement. We understand that the Government's responseis two-fold: first, default procedures and a stronger penalty for failure toprovide written particulars of terms and conditions (see below) and secondlythat Employment Tribunal staff will explain the position to applicants.

Thelatter proposal seems to be that the new IT1 form will ask the applicantwhether they have discussed the problem with their employer. If that question box is not completed, theTribunal will write asking the applicant for the information. In either case, if the applicant says theyhave not, then the Tribunal Office will write explaining to the applicant thatthey must do so. This would trigger athree month extension of the time limit for lodging the IT1. A further extension might be available onthe joint application of the applicant and the employer.

Anobvious question is whether Employment Tribunals have the resources to copewith the inevitable and significant increase in their staff's workload. The Government admits [page 39] that theintroduction of procedures "will take several years to take root" andthat there will be an increase in the number of hearings and administrationcosts. We have serious doubts aboutwhether Tribunals have the capacity to administer the proposed vettingprocedure. The Government should notintroduce any measure unless and until the Employment Tribunal Service and thePresidents of Employment Tribunals have confirmed that the levels of trainedstaff are sufficient to cope with the additional workload without detriment totheir other duties.

TheGovernment has not explained what would happen to the dismissed employee wholodges an IT1 near the end of the three month time limit. If they are referred back to their employer,the likely response is that the contract of employment ended three monthspreviously and so there cannot be a hearing.Will the employee be allowed to proceed with his/her Tribunal claim?

Howwould this proposal affect an employee's efforts to seek another job? Would he/she have to abandon such attemptsuntil their former employer had responded to the request and/or provided ahearing? Is there not a real risk thatthis proposal would prolong the task of a dismissed worker obtaining newemployment?

Sothere are bound to be many more Tribunal hearings, with disputes over whatoccurred and how close the "discussion" came to a"hearing". To save time andcosts, respondents will seek and Tribunals will order preliminary hearings,regardless of the DTI's preference that this should not happen.

Thisis self-evidently a one-sided proposal.There is to be no bar on an employer who does not have or has notfollowed procedures or allowed the employee to do so, from defending a case,let alone any provision to suspend dismissals until the disciplinary procedurehas been completed. The sole impactwould be felt by the worker, not the employer.

GMBwould support a package of measures genuinely designed to promote workplaceresolution of disputes on a fair and even-handed basis. But the sole aim of Proposal 1 is to reducethe number of claims going to Tribunal, regardless of the justice of the case. It is certain that many distraughtapplicants would abandon their case rather than face their employer again. Proposal 1 would hinder the enforcement ofemployment rights, cause great injustice, burden Tribunal staff and lead tomany more hearings. GMB opposes thisnew barrier to access to justice.

Proposal2

Increasingor reducing awards where the employer or the employee had unreasonably failedto take a set of minimum procedural actions in respect of a disciplinary orgrievance issue.

GMBresponse

Thevagueness of this proposal again makes it difficult to respond. In particular, it seems but is not definitethat the "minimum procedural actions" are not the same as the"workplace procedures" in Proposal 1. Nor is it clear whether the escape clause implicit in the word"unreasonably" would be the same as the proposed exemption forapplicants who lodge IT1 forms without exhausting grievance procedures orseeking or accepting the opportunity of a disciplinary hearing or appeal.

Para.3.15 suggests an exemption in cases of "gross misconduct or harassment bya manager". The latter mightconstitute one example of the exemption planned under Proposal 1, but it wouldmark a major departure from current law to excuse non-use of basic disciplinaryprocedures in any case involving gross misconduct. Tribunals should follow the guidance in Baileyv BP Oil Kent Refinery Ltd (1980) that disciplinary procedures might beotiose where "on the shop floor a worker was seen by the works manager andothers to stab another man in the back with a knife". This falls a long way short of removing allcases of gross misconduct from basic disciplinary proceedings.

Weunderstand that the Government is minded to proceed with both Proposals 1 and2, rather than treat them as alternatives.If the standards differ between the two proposals (either in what theaction required of the two parties is, or in the nature or width of the escapeclause) this would sow more confusion in an increasingly complex area.

Furthermore,Proposal 2 would not operate in an even-handed way. Employees who did not use a procedure would risk double jeopardy,because they would first face debarment under Proposal 1 and then suffer lowercompensation under Proposal 2. On theother hand, Proposal 1 would not debar the employer who refuses access to agrievance procedure from defending a case.Worse, in unfair dismissal cases employers might not face any award ofcompensation at all, since Proposal 5 (below) reversing Polkey couldrender the dismissal fair. So yetagain only the worker would suffer the penalty.

TheDTI's procedures [page 17 of the Consultation Paper] are also of limitedapplication. They would not be relevantto many unfair dismissal cases e.g. ill-health, redundancy selection, wheredisciplinary procedures are inappropriate.On the other hand, the proposed grievance procedure could be relevant toall cases other than unfair or discriminatory dismissal, so that the employeewould always be at risk. [Wereturn to the issue of coverage of disciplinary procedures in our response toProposal 5 below.] So in cases otherthan unfair dismissal, the employer would remain at an advantage and theemployee would carry the burden.

Wedo not understand the fixation with written disciplinary charges andgrievances [The proposed Grievance Procedure talks of the employee recordingthe nature of the grievance and sending the complaint to theemployer.] This sits uneasily with theACAS Code of Practice. Leaving asidecases of literacy and disability, is it really the proposal that an employeewho has followed their employer's grievance procedure without redress (and sowill be allowed to lodge an IT1 form) should lose compensation merely because,in compliance with that procedure, they did not commit their grievance towriting?

Wenote that paragraph 3.14 refers to Proposal 2 capturing only employers with"no procedures or with inadequate procedures". This suggests that the proposed minimumprocedures could amount to adequate procedures. In our view, this is very likely tohappen. The lower the standard that isset the lower the standard that will become acceptable.

Likewise,the proposed minimum procedures pose a major threat to the ACAS Code ofPractice which came into force on 4 September 2000. Taken as a whole, the DTI procedures are unquestionably lowerthan the good employment standards espoused by the Code of Practice. Employers, workers and Tribunals will all beconfused by two inconsistent standards that affect not only the day to dayoperation of employment relations but also the remedy for breaches ofemployment rights.

TheDTI proposal seems to be that an employer's failure to follow the minimumprocedures, but not a failure to follow the ACAS Code, could lead to an enhancedaward of compensation. So Proposal 2would introduce the new concept of a very unfair dismissal. This invites the question why compensationshould be enhanced because of an employer's failure to put a complaint inwriting (a requirement that does not appear in the ACAS Code) but not in theevent of a failure to carry out a reasonable investigation promptly beforerecollections faded. Why shouldcompensation be enhanced because an employer failed to allow the employee toaccompanied but not because the employer unreasonably dismissed for a firstminor offence?

TheDI's answer is apparently that compensation is being enhanced, or reduced, noton the basis of justice between the parties, but because of a public policythat some elements of workplace practice are more beneficial than others. We believe that employers and workers alikewould take exception to a compensation policy that is unrelated to the justiceof the given situation or to the degree of seriousness of the infringement ofthe employee's legal rights.

Analternative answer, given to us in briefings, is that the Government expectsthe ACAS Code of Practice to be amended to refer to the minimum proceduralactions in Proposal 2. Such a coursewould not solve the problems created by a two-tier system of unfairdismissal. It would weaken the Code ofPractice, just one year after it took effect.We express the hope that ACAS will resist any such proposal, if indeedthey have been advised of it.

Wewould add that Proposal 2, in itself and in the absence of any barrier tojustice as is outlined in Proposal 1, could be argued to build on section 127Aof the employment rights Act 1996. Inother words, we could see how the Government might want to extend the scope ofthat provision beyond appeals procedures to catch other elements of adisciplinary procedure. However thatsection contains safeguards such as the employer supplying the employee withdetails of the procedure at or near to the relevant. No such safeguard appears in Proposal 2. Furthermore section 127A leaves it to thegood sense of the Employment Tribunal sitting as an industrial jury to decidewhether the justice and equity of the situation should lead to a variation incompensation. There is no restrictedescape clause such as the Government has mooted in briefings. Any measure based on section 127A would haveto incorporate the standards set by ACAS.

Proposal3

Awardingcompensation to an employee to reflect the absence of a written statement.

GMBresponse

Para.3.17 asserts that the written statement of particulars of terms and conditions"is a record of the basis" of the employment relationship. In fact, it is evidence of the employer'sview of that relationship. It is adocument originating from one party.The employee is more able to challenge its accuracy than the employer,since the latter wrote it.

Sothe Consultation Paper misstates the argument in favour of strengthening theincentives for employers to comply with their obligation under section 1 of the1996 Act. The written statement mightwell be ambiguous or disputed. Indeed,frequently it proves to be both.

Howeverit would be right to enable Tribunals, when awarding compensation, to make anadditional award to reflect the absence or inadequacy of a writtenstatement. As written, Proposal 2 wouldcatch only a complete failure, and not an employer who provided a writtenstatement that proved to be wholly inadequate and incomplete. We would urge that the latter be included,so avoiding the need for legislation to distinguish between a total and apartial failure to provide a written statement. The extent of the failure could be one factor in assessing theaward.

Theconsultation paper does not specify the level of this additional award. If it is to amount to a deterrent, wesuggest that Tribunals should have power equivalent to that suggested forProposal 2 i.e. up to 50% of the compensation.

Howeverit would also be necessary to add a compensation award to the powers ofTribunals under section 12 of the Employment Relations Act 1996 for failure togive full or adequate written statements or itemised pay statements. It would be illogical to deny an employeecompensation if they complain of not having received a written statement, butprovide it in the event that they bring a different (successful) complaintduring the course of which the Tribunal learns of the failure to provide astatement.

Wewould support the statutory incorporation of appropriate procedures devised byACAS on the basis of its Code of Practice, into contracts of employment, ratherlike the Equal Pay Act equality clause.However this default system would have to be overridden by an provisionof the employer's own scheme that was more beneficial to the employee. Incorporation should not be based on theskeletal procedures on page 17 of the Consultation Paper, which would introducesuch minimalist standards as to undermine the norms for fair workplaceprocedures.

Proposal4

Removingthe current 20 employee threshold for including details of disciplinary orgrievance procedures in the written statement.

GMBresponse

GMBhas consistently opposed the small employer exemption in section 3(3) of the1996 Act. WERS and the background Paperconfirm that it is small employers who are the most likely to trigger Tribunalcomplaints. There is no justificationfor employees to have fewer basic rights on account of the size of theiremployer's organisation, especially where denial of entitlement is in inverseto the risk they face.

Proposal5

Allowingtribunals to disregard procedural mistake beyond a set of minimal proceduralactions if they made no different to the outcome of the case.

GMBresponse

Thisis the most objectionable of all the proposals in the Consultation Paper. First, such a substantial weakening ofunfair dismissal law has no place in a Consultation Paper on dispute resolutionand Tribunal procedures. It isunacceptable for the Government to single out one aspect of unfair dismissallaw for treatment outside a complete review of the area.

InFebruary 1999, the General Secretaries of GMB and Unison met with the thenMinister to seek an statutory amendment to remove the judicially-impose"range of reasonable responses test" that severely limits the powerof Employment Tribunals to hold a dismissal unfair. The Minister rejected that request but undertook to considerresearch into the operation of the test and to consult the two unions aboutsuch research. No such research wasundertaken, yet neither union was informed of that decision until earlier thismonth (September 2001). The DTI has nowcome forward with a proposal to remove one of the few elements of unfairdismissal law that truly benefit employees.

Secondly,of course, Proposal 5 runs completely contrary to the avowed aim of theConsultation Paper. By relievingemployers of the effects of their breaches of fair procedures, Proposal 5 wouldremove one of the strongest "incentives ... to ensure that proceduresare followed" [para. 3.11]. Yetparagraph 3.22 refers to employers losing unfair dismissal cases for an unimportantreason or because of procedural traps. These phrases sit oddly in a Consultation Paper that asserts theimportance of workplace procedures.

Proposal5 is based on an unsubstantiated assertion that applicants have won unfairdismissal cases "for trivial reasons". Apparently the DTI is now engaged in an exercise to assemble afew case studies where this has happened.The Government has produced no objective evidence to ground thisproposal, and it is no answer for them belatedly to look for untypical hardcases on which to make bad law.

Thirdly,Proposal 5 would complicate unfair dismissal law almost as much as it wouldweaken it. Tribunals would be facedwith a two tier system of employment relations standards in unfair dismissalcases:

Level1: the DTI minimalist standard, a breach of which could render a dismissalunfair (subject to case law such as the range of reasonable responses test)

Level2: any provision of the ACAS Code of Practice or the employer's own procedureshigher than the standard in level 1. ATribunal would have to discount any breach of such a provision if it would havemade no difference to the outcome had the employer acted reasonably.

Theinevitable consequence, of course, would be to so undermine the ACAS Code ofPractice as to remove many of its key provisions from the Tribunal'sconsideration whether a dismissal was unfair.Indeed, Proposal 5 would also damage the credibility of an employer'sown disciplinary procedures. Why shouldthey be observed if they are not relevant to the reasonableness of a decisionto dismiss an employee?

Howeverif the employer had failed to followed the DTI's procedures, the Tribunal could(but might not) hold the dismissal unfair.In that event the employer could apparently still argue under Polkeyfor a reduction in or elimination of compensation on the grounds that fairprocedures (either their own or those in the Code of Practice) would have madeno difference in the hands of an employer acting reasonably. So Tribunals would have to apply differentstandards of good workplace practices for different purposes within the same case.

Proposal5 seems to suggest that Tribunals must disregard any procedural defaultbeyond the DTI's minimalism. Action 2refers to the employee's alleged failure "being discussed". This suggests an extraordinarily weakstandard and implies that the DTI does not consider that a fair hearing constitutesa necessary part of workplace disciplinary procedures. By what logic should a Tribunal not beallowed to take account of an unfair internal hearing? We would be grateful for clarification as towhat precisely this means. Is itproposed that Tribunals should discount any or all of the followingrequirements that appear in the Code of Practice and/case law?

Theright to a fair hearing

Disclosureof witness statements which contain the essence of the employer's case based onthe employee's alleged misconduct

Allowingthe employee to criticise and dispute the evidence against them

Compliancewith the employer's own disciplinary code

Ofcourse Polkey is of wider application than misconduct dismissals. It applies to all reasons for dismissalincluding capability and ill-health and redundancy. The DTI's minimum procedural actions would be unsuitable in suchcases. So either the DTI would have todevise an equivalent model for each reason for dismissal, or Proposal 5 wouldapply only in misconduct dismissals.The former course would lead to a proliferation of procedures and reducestandards across the board. The latterwould set one low standard for misconduct cases and leave intact the highercurrent standards for all other types of case.

Ifenacted, Proposal 5 would leave an empty shell where unfair dismissal law usedto be. The reversal of Polkey,combined with Burchell v British Homes Stores and the range ofreasonable responses test would make it next to impossible for applicants tosucceed at Tribunal. It would be morehonest if the Government were to have the courage to announce its intention toremove unfair dismissal law from the statute book entirely.

Thereis some suggestion that the DTI's minimalist procedures would be incorporatedinto contracts of employment as default procedures, rather like the Equal PayAct equality clause. In GMB's view,they are so inadequate that incorporation would do enormous damage not only tothe standing of the ACAS Code of Practice but also to the good employmentpractices observed by many employers across the country.

Proposal6

TheGovernment seeks views on whether further guidance or good practice material isneeded to ensure that employers are aware of and can meet their obligations in[providing] written statements of employment terms.

GMBresponse

Wedo not credit the Government's concern to promote good practice which itsproposals will inevitably undermine.However we understand this invitation for opinions to centre on theproblem Tribunals frequently encounter in cases because of the employer'sfailure to comply with their obligations under section 1 of the 1996 Act. Para. 3.18 notes the complications thiscauses for Tribunal hearings.

Weare concerned that the DTI should single out such a basic obligation forspecial attention. More resources wouldenable ACAS to mount training and briefing courses for employers of all sizes,perhaps with discounted rates for small employers.

ACASshould no longer charge for its publications (perhaps with a limit of copiesper employer depending on number of employees).

Chapter4: Promoting conciliation

Proposal7

RemovingACAS' duty to conciliate in cases, such as disputes over pay, breach ofcontract and redundancy payments.

GMBresponse

Casessettle late in the day because of the standard litigation techniques pursued bylawyers, usually those acting for employers.Conciliation helps promote settlements.Even when it does not fully succeed, conciliation often helps clarifythe issues in dispute and provides each party with a better appreciation oftheir own prospects. It makes no senseto reduce the number of cases in which ACAS would attempt conciliation.

Wenote that the DTI proposes to remove the ACAS obligation to attemptconciliation from those cases where applicants are most successful at hearing[Table 2]. The likely outcome would beto lead applicants into hearings that might otherwise be avoided.

ACASconciliation costs under 300 per case.Even when added to the similar cost to the State of applications thatare settled or withdrawn before a hearing, this would still total only half thecost to the taxpayer of cases that go to hearing. Logic would suggest that resources should be put into increasingthe number of conciliation officers rather than pressing ACAS to establishmeaningless priorities. In addition,the Government should give ACAS the resources to pursue the types of innovativemeasures outlined in para. 4.7.

Proposal8

Introducinga fixed period for conciliation

GMBresponse

Settlementclose to a hearing is sometimes due to the fact that issues are not clarifieduntil that time. If Tribunals wereencouraged to make interlocutory orders requiring compliance within a fixedperiod rather than by a deadline before the hearing, the parties might be in abetter position to negotiate.

Conciliationand agreement would not be prohibited outside the proposed fixed period[paragraph 4.9]. So the only differencewould apparently be that ACAS conciliation officers would not be under a dutyto help once the period comes to an end.They should nonetheless retain discretion to renew their efforts wherethey believe they might bear fruit.

Wewould be very concerned at the introduction of a fixed consultation periodduring which employment Tribunals could take no active case managementsteps. This would simply lead to delayin every single case.

Proposal9

Broadeningthe scope of compromise agreements to match ACAS-conciliated settlements

GMBresponse

Wedoubt whether this measure would be helpful.It would complicate the process of conciliation and settlement. Employers frequently do not seek toinvestigate whether there are potentially other claims that might bebrought. Rather, their lawyers preparestandard "blanket" settlements of any and all claims that conceivablycould arise, in an attempt to lock out the troublesome applicant from any otherclaim at all. Blanket settlements areunrelated to the merits of the individual case. They enable respondents to put pressure onto applicants andshould be discouraged.

HoweverGMB would support a statutory amendment to exclude all personal injuries[occupational accident and disease] claims actual or potential, from bothcompromise agreements and conciliated settlements. Employers frequently but wholly inappropriately try to includesuch claims in the terms of settlements.

Proposal10

Enablingother organisations to provide conciliation services alongside ACAS

GMBresponse

Wesee no need for this proposal. GivenACAS' track record of success, we would prefer any additional public funding tobe channelled to ACAS and not to commercial or other organisations.

Wewould not support any proposal for conciliation to be funded by the parties.

Chapter5: Modernising employment tribunals

Wenote that the proposals in this chapter appeared a few months after theamendments to Tribunal Rules of Procedure, including new costs rules, came intoforce. They also appeared four monthsafter the Government had received the Leggatt report "Tribunals forUsers".

TheEmployment Tribunal system stands at a crossroads. It can follow the DTI's preferred route towards a court systemwith costs and formality. Alternativelythe Government can accept the recommendation of Sir Andrew Leggatt and hiscolleagues that an attempt be made to rescue Employment Tribunals, build ontheir strengths and restore them to something like their original design. Leggatt also recommends a thorough review ofTribunal rules and the adoption of a standard set of rules for all Tribunals.

Remarkably,the Consultation Paper ignores this debate and instead reads as if a courtsystem was a given. GMB considers thatto proceed on that basis would be irresponsible, and we call for no furthermeasures on Tribunals to come forward until the Government has assessedresponses to the Leggatt Report and reached a coherent, measured decision onthe future of Employment Tribunals.

Proposal11

Introducingcharging for applications to employment tribunals and when a case is listed forhearing.

GMBresponse

GMBopposes this measure.

Leggatt[paragraph 10] attributes Employment Tribunals' success, in part, to the absenceof fees. The introduction of fees,either for applications or for hearings, would run contrary to both the LeggattReport and to long-standing practice.It would radically change the nature of Employment Tribunals, and closeoff the debate on Leggatt.

Sucha deterrent to applicants would lead to many applications being abandoned,regardless of the justice of the case. Itis likely that many employees who had suffered an unlawful deduction from pay lessthan the application fee would not proceed, even where they had a strongcase.

Applicationand hearing fees would be particularly prohibitive in multi-applicant cases, suchas equal pay and the recent part-time workers' pensions cases. On occasions, lodging the IT1 is the onlystep short of industrial action that brings the employer to the negotiatingtable. Application fees would encouragethem in their recalcitrance.

Itis no answer for the Government to propose waivers for those on benefits. Very few people are on low enough incomeafter dismissal to be entitled to income-related benefits, yet they have tobudget for a period of unemployment.The Government must be aware of the low chances of qualified applicantsapplying for waivers. The likelyconsequence is that Proposal 11 would dissuade many workers from pursuingmeritorious claims.

Ona purely practical point, application fees would mean an end to faxing IT1forms in cases of emergency.

Proposal12

Includingin awards of costs compensation for the time a party has spent in dealing withthe claim

GMBresponse

Weoppose this proposal. It comes hard onthe heels on changes to costs rules, and flies in the face of the Leggattrecommendation [page 147, paragraph 23] for a joint study by the DTI and theLCD on costs. At the very least, thenew costs rules should be given the chance to work before further changes areintroduced.

Proposal12 would benefit respondents to a far greater extent than applicants. The Consultation Paper states thatmanagement costs in defending cases average between 10 and 27 hours, dependingon how far the case gets. Respondentsfrequently threaten applicants with costs orders regardless of the merits ofthe case. Proposal 12 would simplyenable respondents to increase the pressure on applicants.

Thereare also practical problems. PresumablyTribunals and County Courts would have to devise rates in each part of thecountry for the acceptable cost of the time of a wide range of workers,including directors, managers and personnel officers. In addition, how would the Tribunal or Court verify the amount oftime each member of management had spent on the case?

Applicants,on the other hand, would gain little from such a provision. The value of their lost time would be modestcompared to that of employers and would pose no realistic worry to respondents. In cases where the applicant is out of work,it is difficult to see how a Tribunal could order costs in respect of the samehours for which it awarded compensation for lost earnings.

TheDTI acknowledges that there is no precedent for such an extension of costsawards. It would be extraordinary tointroduce such an uneven-handed measure in one sector of the administration ofjustice.

Proposal13

Changingthe presumption on awarding costs in weak cases, so that tribunals will have togive reasons why costs are not awarded.

GMBresponse

Again,there can be no justification for this measure. We have not yet seen how the new costs rules are operating. Proposal 13 is simply an attempt topressurise Tribunals into abandoning the culture lauded by Leggatt, in favourof an inappropriate model that is based on the courts and the subject ofdispute.

Wenote that the DTI talks of "weak" applications or responses[paragraph 5.13]. This suggests awidening of the situations in which costs might be awarded and would be opposedby GMB.

Applicantsfrequently have to mount Tribunal cases in ignorance of the full facts. Employers, on the other hand, will almostalways have full knowledge and be in possession of all relevantdocumentation. So any costs system isbound to benefit respondents rather than applicants.

Proposal14

Enabletribunals to make orders for wasted costs directly against representatives whocharge for their services.

GMBresponse

Itis certainly true that some "consultants" behave disgracefully, andGMB has previously highlighted examples of quite unacceptable conduct. However we oppose this as a matter of principle. Proposal 14 is yet another step towards acourt system.

Inany event, it would be difficult to maintain indefinitely a distinction betweenfor-profit and not-for-profit representatives.In due course there would be a significant risk that such a rule wouldbe extended to catch any representative.

Proposal14A

ETSshould no longer pay expenses

GMBresponse

Paragraph5.15 proposes that if a charge is introduced for applications, the ETS shouldno longer pay expenses, with recovery only being through an award of costs.

Thiswould adversely affect applicants, who incur expenses whether or not therespondent acts unreasonably in defending the case. Applicants' witnesses are more likely to attend willingly iftheir expenses are paid. Respondentsusually meet the expenses of their own witnesses, the overwhelming majority ofwhom are their own employees.

SoGMB opposes this one-sided proposal.

Proposal15

Makingthe application form to employment tribunals (IT1) mandatory.

GMBresponse

Wedo not see the need for this proposal.It seems to be based on unspecified new procedures.

Manyapplications concern straightforward facts that are easily contained within aletter or other written application. Onthe other hand, some involve such complex situations that parties have to annexstatements to the form. Ease of accessmust remain a cornerstone of Employment Tribunals.

Ifsuch a measure is to be introduced, then it would be important to provide thatapplications lodged otherwise than on IT1 forms would be treated as meeting thetime limit. The Tribunal office couldthen send the applicant an IT1 form with advice to complete and submit itwithin a reasonable period e.g. two months.

Proposal16

EnablingPresidents of Employment Tribunals to issue practice directions on proceduraland interlocutory issues

GMBresponse

Wehave no objection to this proposal.

Howeverwe recall that in 1988 the then President of Employment Tribunals in Englandand Wales instructed all Tribunal offices to write to applicants pursuing whatwere then Wages Act complaints about deliberate under-payment of wages. The letter said that "the COIT is ofthe opinion that no grounds of claim exist". The TUC raised objections to this direction, not least because noappellate decision had been issued on the question. The letter was withdrawn and subsequently, in Delaney vStaples the House of Lords ruled that such claims did indeed fall withinthe Wages Act.

Wemention this to express the hope that in exercising any such power, thePresidents will prove rather more responsible than their predecessor.

Proposal17

Introducinga fast track for certain jurisdictions with either no or a short fixed periodfor conciliation. This could include awritten determination if both parties agree.

GMBresponse

Asindicated above in our response to Proposal 7, we do not agree with removingfrom ACAS the duty to conciliate in the types of cases mentioned in para.5.20. Different fixed periods ofconciliation will only cause confusion.As the Consultation Paper notes, new Tribunal rules enable more robustcase management.

Introducinga fast track would not solve the problem of an inadequately staffed and poorlyrun Tribunal system. What would happento applications raising more than one ground of complaint e.g. unfairdismissal, redundancy payment and deduction from wages? Is it proposed that some elements of a casewould be hived off into the fast track and the rest follow the normalprocedure?

Norwould we support any further weakening of the role of wing members. We do not believe that applicants wouldbenefit from the extension of cases that are heard by a Chairman sitting alone.

Hearingsalso often benefit some unrepresented applicants who can more easily explainverbally what happened than commit it to writing. We would support joint waivers of a hearing where both sides wererepresented and have been advised as to the options open to them.

Proposal18

Registeringapplications publicly only once the claim has gone through the conciliationperiod and is going to a hearing.

Proposal20

TheGovernment seeks views on whether to publish the particulars of the complaintand the response on the public register

GMBresponse

Althoughwe do not support a fixed conciliation period, we do support the proposal todelay placing applications on a public register.

HoweverGMB strongly opposes the publication of additional details on the publicregister. The Employment TribunalService has proposed publishing details of applicants on the Internet. Either practice would make it easier to drawup boycott lists of applicants for sale to other employers.

Thisneed not inhibit the collection of statistics.It would help limit the role of ambulance chasing employment advisorswho extract information from the public register. We suggest that the Lord Chancellor's Department should revisitthe February 2000 report of the Blackwell Committee with a view to consideringwhat can be done to protect the parties and the public from the activities ofthese ambulance chasers.

Proposal19

TheGovernment seeks views on what more could be done to ensure that weak cases areidentified and dealt with at an early stage

GMBresponse

Asalready mentioned, new Tribunal rules will enable more robust casemanagement. It is very difficult forTribunals to identify weak applications or responses at an early stage, beforefurther particulars and discovery have been completed.

Wewould reiterate our strong view that the Government takes on board therecommendations of the Leggatt Report before tinkering further with Tribunalrules. Much of the problem of weakapplications and responses would be better dealt with in the context of areinvigorated Tribunal Service whose staff were trained and equipped to play amore positive role in helping the parties understand what they faced.

Conclusion

TheConsultation Paper does not address many of the problems it identifies:

Increasinginstances of breaches of employment rights [paragraphs 1.4, 1.5]

Increasesin certain types of breaches, including unfair dismissal, due to structuralchanges in the economy [paragraph 1.5]

Inadequateremedies e.g. moving a harasser to another post [paragraph 1.7]

Damageto the career of those who take a claim to a Tribunal [paragraph 1.8]

Helpfor employees who put up with a problem for fear of losing their job [paragraph2.3]

Therefusal of employer to settle some types of cases such as redundancy paymentsclaims [paragraph 2.7 & Table 2]

Instead,it singles out for attention those workers who bring complaints and seeks toforce them into using procedures that are often alien to their own employers'culture. Workers are being penalisedfor their employers' defective practices.

TheConsultation Paper sets out its aims of

Promotinggood employment practice in the workplace

Promotingthe amicable settlement of individual grievances and ways of resolving themwithout recourse to litigation

Reformingthe tribunal system to enable cases to be resolved more efficiently in waysthat are fair to both sides.

Wequestion whether any of the proposals will make a significant contribution tothese objectives. The more likelyoutcome will be to equip employers with additional litigation tactics to harryand discourage workers from bringing well-founded complaints. Its minimalist procedures will cut theground from under ACAS and good employers.

Theseproposals might well reduce the number of Tribunal complaints, but in a wayquite unrelated to justice between the parties let alone the enforcement ofemployment rights. The DTI seems drivenpurely by a desire to reduce the number of Tribunal claims regardless of thejustice of the situation. Employeeswill pay the price for their employers' failure to establish and promoteworkplace procedures.

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