Resolving Disputes
The current framework for resolving employment disputes in Great Britain emphasises the importance of the early resolution of workplace matters in the workplace. This framework came into force on 6 April 2009.
There are two key elements to this framework:
- legislative measures
- non legislative measures
As a result of these measures, employees and employers have greater flexibility to deal with workplace discipline and grievance issues in a way which suits them best.
Legislative measures
The legislative measures are based on the Employment Act 2008. The Act paved the way for the Acas statutory Code of Practice on discipline and grievance, which sets out the principles that employers and employees should follow when dealing with disputes at work.
The foreword to the Code highlights that employers and employees should always seek to resolve disciplinary and grievance issues informally.
However, where an issue cannot be resolved informally, then it may be pursued formally. According to the Code, employers and employees should behave fairly and reasonably when taking formal action to resolve their dispute.
The Acas Code specifies what employers and employees should do to achieve a reasonable standard of behaviour in handling grievance and disciplinary/dismissal situations at work. However, sometimes it will not be practicable for all employers and employees to take all of the steps set out in the Acas Code of Practice: what is classed as reasonable behaviour will depend on the circumstances of each case and is ultimately a matter for employment tribunals to decide.
Whenever a disciplinary or grievance process is being followed, the basic principles of fairness set out in the Acas Code should still be observed. For example, issues (both employer’s and employee’s) should be raised and dealt with promptly and there should not be unreasonably delays in meetings, decisions or confirmation of those decisions. Employees should be informed of the allegations against them and should be given an opportunity to put their case in response before decisions are reached. Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting and should be provided with a right to appeal before a decision is reached.
Although a failure to follow the Code does not, in itself, make a person or organisation liable to proceedings, employment tribunals are legally required to take the Code into account when considering relevant cases. The employment tribunal will consider whether a failure to follow the Code was unreasonable and may take into account factors such as the size of business. Then the tribunal will have discretion to adjust any awards made to either party by up to 25 per cent for unreasonable failure to comply with any provision of the Code. This means that if the tribunal considers that an employer has unreasonably failed to follow the guidance set out in the Code they can increase any award they have made by up to 25%. Conversely, if they feel an employee has unreasonably failed to follow the guidance set out in the code they can reduce any award they have made by up to 25%.
Non legislative measures
The Government is also investing a significant amount of resources into providing new services to help employers and employees resolve their disputes earlier.
Enhanced Acas helpline
The Government is providing Acas ( the Advisory, Conciliation and Arbitration Service ) with significant levels of funding over 3 years to provide an enhanced helpline with extended opening hours. The enhanced Acas helpline will help employers and employees identify the most appropriate way to deal with their disputes as well as offer free, confidential and impartial advice on all employment rights issues.
- Acas helpline: 08457 47 47 47
Early conciliation
The Government is also providing Acas (the Advisory, Conciliation and Arbitration Service) with funding to boost its ability to offer employers and employees early conciliation for problems which are potential employment tribunal claims.
This early conciliation service (or “Pre-Claim Conciliation”, or PCC for short) is a free service for both employers and employees in appropriate circumstances. It is delivered via a network of Acas conciliators across Great Britain. Disputes that employees and employers have been unable to resolve by other means (such as internal grievance, discipline or appeal procedures) and which are likely to give rise to an employment tribunal claim if third party help is not provided, may be suitable for early conciliation.
The Acas helpline advisors will be able to identify whether a particular case is suitable for referral to the pre-claim conciliation service, and if so, will put the parties in touch with a conciliator.
Mediation
The Government has been working closely with the workplace mediation community to encourage the use of mediation, where this is appropriate. The foreword to the Acas Code makes clear the benefits of using mediation in helping to resolve workplace disputes.
A number of workplace mediation providers are registered members of the Civil Mediation Council (for England and Wales) or are on the Scottish Mediation Register managed by the Scottish Mediation Network (for Scotland). These providers declare that they meet certain standards covering training, practice development, codes of conduct, complaints handling and indemnity insurance. A list of registered workplace mediation providers can be found at www.scottishmediationregister.org.uk for Scotland and at www.civilmediation.org for England and Wales.
Transitional provisions
During a transition period from 6 April 2009, there will be some cases where a dispute started before 6 April 2009, but have not yet become an employment tribunal claim, and others where an employment tribunal claim has been made but the case is awaiting a hearing. If the employment dispute started before 6 April 2009, the pre-6 April 2009 regime may still apply to the parties.
(43KB)Background to the dispute resolution changes
On 6 April 2009 the Employment Act 2002 (Dispute Resolution) Regulations 2004, which laid down a mandatory “three-step” procedure were repealed and replaced by a new framework based on the provisions of the Employment Act 2008 in Great Britain.
The Employment Act 2008 is the result of an independent review of the employment dispute resolution system in Great Britain, led by Michael Gibbons. The Gibbons review ‘Better dispute resolution: a review of employment dispute resolution in Great Britain’ was published on 21 March 2007.
The Government welcomed the review and published 'Resolving disputes in the Workplace - A consultation' which set out measures for taking the Gibbons Review forward.
Responses to the consultation enabled the Government to identify key legislative reforms for inclusion in the Employment Act. Details of all these measures are set out in the Government response to the consultation.
Where to find guidance?
If you are an employer in Great Britain, guidance and practical advice for business can be found on businesslink.gov.uk.
If you are an employee in Great Britain, guidance on all employment rights including the current dispute resolution system can be found on Directgov.
If you are either an employer or an employee in Great Britain, Acas operate a free, impartial and confidential, helpline to provide information and advice on individual employment right issues that may not be covered by Directgov and businesslink.gov.uk:
- Acas helpline number: 08457 47 47 47
Resolving Employment Disputes in Northern Ireland
The Acas statutory Code of Practice on discipline and grievance and the Employment Act 2008 are not applicable to Northern Ireland: the dispute resolution procedures in Northern Ireland are the responsibility of the Department for Employment and Learning of Northern Ireland (DELNI).
If you are either an employer or employee in Northern Ireland, guidance on the dispute resolution procedures can be found on the DELNI website.
- DELNI advice on employment rights
If you are either an employer or an employee in Northern Ireland, the Labour Relations Agency (LRA) operate a helpline and website that will give you information on all employment rights issues, including advice on the options available for dealing with a problem at work. Northern Ireland has also its own separate mediation and conciliation services. You can find out more about these from the Labour Relations Agency (LRA).
- LRA helpline number: 028 9032 1442