About the Conference
This whole day developed an extremely useful and informative narrative and discussion of recent initiatives, and ongoing legislative changes to the employment tribunal system, exploring the implications and impacts on workers’ ability to access workplace justice as it was originally envisaged by the Donovan Report.
Nicole Busby from the Strathclyde Law School set the tone for the day in her contribution ‘Employment Disputes: Surveying the Terrain’, which argued that a shift in ideological and political perspective was being used to portray an Employment Tribunal system ‘in crisis’ as an overbearing burden on business. This flawed prospectus was the basis for the ‘wrong prescription’ of fees and early conciliation which is more about deterring access to the system and is in fact exacerbating a lack of understanding and frustration with the process.
David Renton, a barrister at Garden Court Chambers and joint author of the IER publication ‘Justice Deferred: a critical guide to the Coalition’s Employment Tribunal reforms’ continued this theme by highlighting some of their more malign impacts including the way that fees actually impact most on those who can least afford to pay, with the contingency for fee remission missing the majority of potential claimants. David also used the Government’s own statistics to show the way in which we are seeing a dramatic fall in unfair dismissal claims as confidence in the system drains away as a result of these changes.
Unison’s Shantha David talked about their legal challenge to tribunal fees and the basis on which these representations have been made to the courts using European Union and Human Rights legislation in ‘How Trade Unions can fight for members to achieve justice’. While the arguments have so far been resisted (seemingly on rather spurious grounds), Unison is appealing and it’s a case of “Watch this Space!”.
Prof Bryan Clark of the University of Strathclyde talked about the theory and practice of ‘Mediation’ as a voluntary process of negotiated dispute resolution with an independent third party. He looked at the range of models for this and discussed some of the real life complications and complexities. He also went on to (perhaps contentiously?) describe mediation as a “growth area” and a filtering system – “plugging the gaps” with an informal justice response to a civil system that is broken and underfunded. He did however recognise that this would be taking place within existing workplace relationships characterised by an asymmetrical balance of power, and which could become ‘justice on the cheap’ about which employers would be more enthusiastic than their employees.
Neil Todd from Thompsons Solicitors explained some of the legal technicalities of the new Pre-termination ‘Confidential’ negotiations procedures, anticipating the way in which some of the case law may develop. Most interesting was Neil’s view that while initially as trade unionists we may be right to have serious concerns about the impact on an employee’s ability to defend unfair dismissal or establish the grounds for a constructive dismissal, there will be areas of concern and uncertainty for employers, which may mean that the more enlightened could be deterred from seeing ‘protected conversations’ as an easy shortcut dismissal.
The ‘view from ACAS’ was given by Peter Monaghan, Area Director North West, who discussed ACAS’s enhanced role as a result of the early Conciliation procedures which will take effect from April 2014. Keen to stress the voluntary nature of the new approach and that while it is much more about the appropriate nature of the intervention rather than seeing it as a panacea, he argued that conflict resolution in the past has often been handled badly; all too often about ‘equality of loss and expediency’. The new procedures may, he suggests, allow for more ‘informal’ settlements within a professional relationship.
Finally, Morag McDermont From the University of Bristol Law School outlined a piece of case study research, to show the bad experience many workers have as a result of an increasingly legalistic and bureaucratic Employment Tribunal system. She advocated a number of approaches which could be used to provide an ‘improved tribunal experience’ for workers, including an enhanced role for CAB ‘specialist’ advisors, enforcement of awards where employers refuse to pay (as they often do) and ‘empowering workers’ by promoting a ‘culture of rights’.
For me as a TUC tutor, the discussion and explanation of these recent changes to the Tribunal process will prove extremely valuable, and will provide me with a range of additional sources and resources to help facilitate better understanding amongst the trade union reps on our courses. Perhaps the main point from today is the complexity of the system facing trade unions and their members now, and the need to develop a coherent labour movement response.
Download conference papers
Chaired by Carolyn Jones, Director of the Institute of Employment Rights
Nicole Busby, University of Strathclyde
Employment Disputes: surveying the terrain
David Renton, Garden Court Chambers
Justice Deferred: the impact of the Coalition’s Tribunal reforms?
Prof Bryan Clark, University of Strathclyde
Mediation and employment disputes
Neil Todd, Thompsons Solicitors
What’s confidential about pre-termination negotiations?
Morag McDermont, University of Bristol
The future of employment dispute resolution
Shantha David, UNISON
How Trade Unions can fight for members to achieve access to justice
Missed out? Book now for our next Access to Justice Conference in London
Wednesday 19 March 2014
A one-day conference
UNISON centre, London
Organised by the Institute of Employment Rights.