The resolution of employment disputes in the UK Keith Mizon

2. The resolution of employment disputes in the UK Keith Mizon Director, Individual Dispute Resolution Acas

3. Dispute resolution in the UK- UK industrial relations system • No longer collective (and individual) laissez-faire … • … but collective relations still essentially voluntarist … • … with minimum individual employment rights guaranteed by statute and enforceable in Employment Tribunals

4. Dispute resolution in the UK- Acas • Primary statutory duty “to promote the improvement of industrial relations” • Mission statement: To improve organisations and working life through better employment relations • Organisational independence, impartiality and operational freedom enshrined in legislation

5. Dispute resolution in the UK- Acas • Tri-partite Council acts as a kind of supervisory board determining strategy and high level policy • Products and services • Collective and individual dispute resolution • Information, advice, guidance, training and consultancy support aimed at dispute prevention and the promotion of good practice

6. Dispute resolution in the UK- collective disputes • Employers can be compelled to recognise TUs … • … but no real duty to bargain • Procedural and substantive agreements are not legally enforceable and don’t need to be registered

7. Dispute resolution in the UK- collective disputes • Procedural agreements usually, but not always, provide for third party assistance where there is a failure to agree • Parties cannot be compelled to enter into conciliation/mediation and/or arbitration and generally suffer no penalties for not doing so

8. Dispute resolution in the UK- collective disputes • “Where a trade dispute exists…Acas may…offer the parties…its assistance with a view to bringing about a settlement” S210(1) TULR(C)A 1992 • Note “may” not “shall”

9. Dispute resolution in the UK- collective disputes • “In exercising its functions…Acas shall encourage the parties…to use…agreed procedures for negotiation or the settlement of disputes” S210(3) TULR(C)A 1992 • Consequently, Acas will not usually intervene substantively until the parties have exhausted all domestic steps, but has a deal of flexibility and latitude as to how it assists

10. Dispute resolution in the UK- collective disputes • Small proportion of cases do not involve trade unions, but rather works councils/committees • Process almost always done face to face – although not necessarily with the parties in the same room, or the same building, at the same time! • Over 80% success rate

11. Dispute resolution in the UK- collective disputes • “Where a trade dispute exists…Acas may…with the consent of all the parties… refer any or all matters…to arbitration” S212(1) TULR(C)A 1992 • In exercising its functions…Acas shall consider…conciliation” S212(2) TULR(C)A 1992 • Part 1 of the Arbitration Act 1996… does not apply…” S212(5) TULR(C)A 1992

12. Dispute resolution in the UK- collective disputes • Arbitration better suited to disputes of right rather than disputes of interest • Pendulum arbitration quite rare • Arranged, but not done, by Acas employees

13. Dispute resolution in the UK- individual disputes • Statutory disciplinary and grievance procedures implied into individual contracts of employment … • … but have not proved successful in reducing Employment Tribunal claims and resolving more disputes in the workplace

14. Dispute resolution in the UK- individual disputes • “Acas shall designate some of its officers to perform the functions of conciliation officers under any enactment … relating to matters which are or could be the subject of proceedings before an ET” S211 TULR(C)A 1992

15. Dispute resolution in the UK- individual disputes • “It shall be the duty of a conciliation officer…to endeavour to promote a settlement of the proceedings without their being determined by an ET” S18(2) ETA 1996 • Thus, the conciliator’s prime duty is to keep the case out of the ET, not necessarily to promote an equitable resolution, except in UD re-employment cases

16. Dispute resolution in the UK- individual disputes • “Anything communicated to a conciliation officer…shall not be admissible in any ET proceedings except with the permission of the person who communicated it” S18(7) ETA 1996 • Communications between parties and the conciliator are privileged

17. Dispute resolution in the UK- individual disputes • “Any provision in an agreement is void (if).. it purports…to preclude … proceedings ... before an ET (unless) … a conciliation officer has taken action under S18 of ETA 1996 … or a valid compromise agreement has been concluded …” S203 ERA 1996

18. Dispute resolution in the UK- individual disputes • Nearly 70000 net cases in 06/07 • UD, breach of contract, deductions from wages form the greatest proportions • No power to compel parties to submit to conciliation; a voluntary process • Acas conciliators entirely separate from the ETS

19. Dispute resolution in the UK- individual disputes • Much of the work done by phone, especially with experienced representatives, although some face-to-face work in more complex cases • Only about 25% of originating applications heard by Tribunals