Government to restrict tribunal protection

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The 2002 Employment Act included a new standard for grievance, disciplinary and dismissal procedures. The motive was to reduce the number of Employment Tribunal claims by encouraging employers and employees to resolve disputes.

The Act lays down a three-step framework to be implemented in regulations:

• the employee/r sets out the grievance or allegation in writing
• employer and employee meet; the employee has the right to be accompanied by a colleague or trade union representative
• an appeal against disciplinary action or unsatisfactory handling of a grievance

The proposed framework is less thorough than the current ACAS Code of Practice. The main shortcoming is that employers are not obliged to investigate as part of preparing a disciplinary case.

The DTI has now moved on to drafting regulations to implement the Act. Consultation on dispute resolution finished last October, but the draft on employment tribunals is open for comment until 5 March.

Employment Tribunal procedures

The proposals on Employment Tribunal Procedures fall short of the political rhetoric that pushed the bill through Parliament. They introduce a pre-acceptance stage in tribunal claims. Tribunal chairs will be given powers to throw out an employee's claims after reading the application form and without a full hearing, where:

• the worker hasn't informed their employer of a grievance in writing and waited 20 days for a response
• the worker does not have enough continuous employment to qualify for an employment right
• the applicant does not qualify for a right because they are not an employee

Currently tribunal officials can advise applicants that their claim is unlikely to be successful but the individual still has the right to a full hearing. It would be interesting to test this restriction against the 'fair hearing' guaranteed by the Human Rights Act.

Dispute Resolution Regulations

The Government consulted last autumn on Dispute Resolution Regulations to implement the 2002 framework. Every worker should be seriously concerned about two proposals:

• the Act's provisions to make the new procedures part of every contract of employment are not to be triggered. This will probably lead employers only to use them where they think a dispute is likely to end in a tribunal or they have already decided to sack someone.
• the procedures would only be triggered once the employer has decided to dismiss an employee, and would not apply to oral or written warnings or to suspensions

If the procedures are only used once a dispute has escalated and the employer has decided on dismissal, the employee's prospects of keeping their job will be seriously diminished; and if the employee messes up their response they will be debarred from a tribunal even if their dismissal is intrinsically unfair by current standards.

An employee must notify an employer of a grievance in writing and wait 28 days for a response, before taking their claim to an employment tribunal.

Failure to complete the procedures will incur financial penalties in any subsequent tribunal awards. If an employer fails, the award to the employee would be increased by up to 50% on current levels. If an employee fails, any award might be reduced by the same amount.

The proposals on dispute resolution not only undermine the objective of resolving disputes within the workplace, but erect new barriers to workers obtaining the limited justice they can now expect if unfairly dismissed.

Though consultation is over, it may still be worth contacting your MP

Find out more

• Employment Act 2002 (Dispute Resolution) Regulations ('the Dispute Resolution Regulations')
• Draft Revised Employment Tribunal Regulations and Rules of Procedure. Consultation ends 5 March 2004

Both documents can be seen at can be seen at www.dti.gov.uk.

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