STUC Response to the DTI Consultation on Dispute Resolution Draft Regulations
Purpose of Paper
Please find attached the STUC's draft response to the Dispute Resolution Draft Regulations Consultation, which closed on the 29th October 2003.
Background
After previous consultation the Employment Act 2002 set out a new framework for dispute resolution. This consultation document focussed on the detailed application of these dispute resolution procedures. The government intends to fully implement the new regulations and procedures in October 2004.
The key points raised in the response cover the following areas:
· Ensuring all parties in the workplace are made aware of how to follow the new statutory procedures · Concerns around the scope of exemptions · Concerns about dilution of the ACAS code of practice in this area · Call for the government to ensure that the new minimum procedures become an implied term of employment contracts · Ensuring that existing good practice is not undermined
Recommendation
The General council is asked to homologate this response and suggest any amendments or additions that may be necessary.
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STUC Draft Response to the DTI Consultation on Dispute Resolution Draft Regulations
Introduction
The STUC is Scotland's Trade Union Centre. Its purpose is to co- ordinate, develop and articulate the views and policies of the Trade Union Movement in Scotland and, through the creation of real social partnership, to promote trade unionism, equality and social justice; the creation and maintenance of high quality jobs and the public sector delivery of services.
The STUC represents around 630,000 working people and their families throughout Scotland. It speaks for trade union members in and out of work, in the community and in the workplace. Our affiliated organisations have interests in all sectors of the economy. Our representative structures are constructed to take account of the specific views of women members, young members, black/minority ethnic members, LGBT members, and members with a disability, as well as retired and unemployed workers.
Comments on Proposed Statutory Minimum Dispute Resolution Procedures
The STUC welcomes these draft regulations. We recognise that discussing problems in the workplace will not solve all of them, however we are strongly of the belief that in many cases dialogue can result in quicker and more flexible solutions, which preserve the employment relationship.
We note the view in the consultation document that most employers and employees recognise that it is best for these disputes to be raised first - and preferably resolved in the workplace, rather than in an employment tribunal or court, and we are also aware of the costs associated with employment disputes, both in human and financial terms.
The consultation document states that the Government firmly believes in commitment and partnership in the workplace and that
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resolving disputes between employers and employees is an important part of this objective, and we welcome this stance.
As an organisation whose affiliates deal with dispute resolution on a regular basis, we are clear that many firms do have set disciplinary and grievance procedures. Recent estimates however indicate that up to 60% of businesses have no internal procedures for dealing with disputes, and many applicants to tribunals win claims on the basis of lack of, or failures with, procedures.
We understand that it is against this backdrop that proposals have been brought forward for new statutory minimum procedures for dispute resolution in the UK.
Trade unions play a vital role in giving employment rights advice and representing employees at employment tribunals and the low number of Employment Tribunal cases coming from unionised workplaces demonstrates that trade unions have a good track record in resolving disputes within the workplace.
However, while welcoming the general principles of the proposed new minimum requirements and the fact that they will apply in all workplaces, regardless of size, we are concerned by a number of elements of the proposed new regulations and how they will affect current good practice.
Areas of particular concern include:
· Failure to follow statutory procedures impacting on employment tribunal applications.
Proposals indicate that failure to follow the statutory procedures may impact on employment tribunal applications. Where an employer has not followed the procedures in a dismissal case this will be found to be automatically unfair and where an employee has not written to the employer prior to presenting his or her complaint to the employment tribunal the complaint will not be admissible.
It is also indicated that if either party has not completed the relevant procedure, the tribunal must increase or decrease the compensation by 10% and may do so by up to 50%. If this procedure is introduced, then it is absolutely vital that all parties,
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in particular employees, are made fully aware of what steps must be followed.
· Scope of Exemptions
The STUC is concerned that the procedure will not apply to an employee to whom the employer issues a written or oral warning. Similarly it will not apply to employees that the employer wishes to dismiss during a strike or lock out. This is unsatisfactory and we feel that in both these circumstances the employee should have the right to follow a statutory minimum procedure.
We also believe that a number of the conditions set, that would allow either the employer or the employee not to follow the statutory procedures, are open to interpretation. For example where the other party behaves in an unacceptable way, what would constitute unacceptable?
· Overlapping issues
In our view, regulations should cover all disciplinary issues, not just dismissal, and where a workplace dispute concerns a number of "overlapping issues" it is unclear as to which statutory procedures apply.
· ACAS Code of Practice
We note that in the consultation document that the employer will be considered to have behaved in a reasonable manner of they have followed the ACAS Code of Practice. We are also aware that currently ACAS are developing a new Code of Practice in this area and that it has been suggested that a separate code be developed for small businesses.
We feel that there is a need for clarity on where employers will be expected to follow the ACAS code and where they will be expected to follow the statutory minimum procedures, as in their current form these differ in a number of ways. We are also concerned that there is a potential for the statutory minimum procedures to weaken or undermine the existing ACAS code, and that employees rights may be affected adversely where employers choose to change to the more simple procedure.
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Furthermore we would also not favour a separate code for small businesses as we feel that small business should be able to meet the same standards as larger companies in this area.
Lastly we are concerned that the code will not be released until October 2004 and that consultation on the code will not commence until early next year. We would have welcomed the opportunity to be able to examine both the new proposed code and these minimum statutory procedures at the same time.
· Dispute resolution procedures implied term of all employment contracts
We note from the proposals that the Government does not propose to incorporate section 30 of the Employment Act 2002, which would make the dispute resolution procedures an implied term of all employment contracts. However, as regulations will apply to all employers and all employees it seems this could be a straightforward way of making individuals aware of the minimum procedures.
Therefore, as the new regulations will not be an express term in contracts of employment, the Government must act to ensure all employees and employers are made fully aware of the minimum procedures and also that employees "Right to be accompanied" at grievance and disciplinary procedures, under the Employment Relations Act 1999, is also made clear.
· Existing Workplace Agreements and Good Practice
We further regret the fact that the clause in the Employment Act 2002, which states that existing procedures should not be affected by the minimal statutory procedures, is not to come into effect. This means that there is nothing to stop an employer from rescinding from collective agreements or current custom and practice to revert to the minimum standards, which may lead to the legislation having a negative impact on employees.
· Awareness of New Minimum Statutory Procedures
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The consultation document states that the DTI hope to develop highly effective regulations in this area. In light of this statement, we believe that it is absolutely essential that the DTI ensure that all employees and employers are aware of the implications of these new procedures.
Furthermore, that discussion continues with all stakeholders, including trade unions, with regard to the implementation and monitoring of the new legislation.
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