With the one-year anniversary of the publication of Gibbons Review, it is now perhaps a good opportunity to reflect on it and consider the ongoing moves to reform dispute resolution and in particular whether it is likely that there will be a growth of mediation in the workplace.
To recap, in March 2007, BERR published Michael Gibbons’ independent Review of Employment Dispute Resolution in Great Britain, and an associated government consultation paper, Resolving Disputes in the Workplace.
The Review considered, among other things, the Employment Act 2002 (Dispute Resolution) Regulations 2004 and some of the key recommendations included:
· Repeal the statutory dispute resolution procedures set out in the Dispute Resolution Regulations.
Produce clear, simple, non-prescriptive guidelines on grievances, discipline and dismissal in the workplace, for employers and employees.
· Ensure there are incentives to comply with the new guidelines, by maintaining and expanding employment tribunals’ discretion to take into account reasonableness of behaviour and procedure when making awards and cost orders.
· Challenge all employer and employee organisations to commit to implementing and promoting early dispute resolution, e.g. through greater use of in-house mediation, early neutral evaluation, and provisions in contracts of employment.
Since then, the Employment Bill has received its first reading in the House of Lords on 6 December 2007.
The Bill has been covered in previous editions of ELA Brief but key points include the removal of all the statutory procedures, the removal of the fixed conciliation periods which will lead to Acas will also have a greater role to play in resolution of disputes.
The Acas Code of Practice on discipline and grievance is also being substantially revised and will be re-issued when the Bill comes into force. Employment Tribunals will have the discretion to adjust awards upwards or downwards by a maximum of 25 per cent. where a tribunal finds that the parties have unreasonably failed to comply with ACAS’s statutory code on discipline and grievance
Whilst we know the content of the draft Bill, the concern for employment lawyers is that we have not received the conclusions of the government’s consultation nor do we know the content of the new draft Acas code.
As a consequence there is doubt as to what is going to be the nuts and bolts of any legislation and to what extent it will follow the recommendations of the Gibbons Review.
It is still too soon to judge but from what I can tell it looks as though key parts of the Gibbons Review will be implemented.
For example, the Government is implementing some of the recommendations of the Gibbons Review such as repealing the statutory procedures and abolishing fixed periods for ACAS conciliation. Furthermore it was announced in February 2008 the Government has increased its funding of Acas by £37m to help prevent workplace disputes. An increase in funding was requested by the Gibbons Review.
Whether we will see a culture change in the resolution of workplace disputes with the growth of mediation is another matter.
With implementation going to be April 2009 at the earliest, some issues to consider over the course of the next year and beyond are:
1 The wording of the new Acas Code. It must not be neglected that the current Dispute Resolution Regulations were meant to simplify and make disputes more informal. As we know this has not happened and this neatly illustrates legislation can have opposite effects to what is intended. The precise wording of the Acas Code will have a real impact on the extent to which mediation is going to move into workplace disputes.
2 How much in-house mediation and alternative dispute will be encouraged? Michael Gibbons wanted to challenge all employer and employee organisations to commit to implementing and promoting early dispute resolution - This is pivotal because if mediation is encouraged at an early stage by means of say, Contracts of Employment, it will genuinely change the way workplace disputes are conducted and will have a strong impact on the role of lawyers in employment law litigation. Lawyers may have the understandable reaction to view this as a threat in potential reduction of fees but there may be opportunities as well.
3 How effective advocates will solicitors be within mediation? If the Gibbons Review is largely to be implemented, what is lawyers attitude going to be mediation? One Head of Employment in a London law firm told me that he had 2 mediations, both of which failed due to what he said was the adversarial approach of the other side. The mentality required of an adviser dealing with mediation a different to that of the successful lawyer who deals with adversarial advocacy before the tribunal. However knowledge of employment law and procedure will remain important, not least to secure or avoid a 25% adjustment to the award. If you treat mediation just like another Tribunal case, you will come up short in mediation and your confidence and that of your client in the process will be reduced and any employment lawyer may be inclined to avoid it in the future.