Changing patterns in UK dispute resolution

1. Changing patterns in UK dispute resolution Professor Keith Sisson LRC Seminar 21/11/05

2. Starting points • decline in ‘organised’ conflict – 2004/05 = 1,126 Acas collective conciliation cases • mainly a public service phenomenon • rise in ‘unorganised’ conflict • employment tribunal cases top 100,000 • absenteeism – 50 times as many days lost through absenteeism as through ‘organised’ conflict • labour turnover • the productivity ‘gap’/public service reform/engagement

3. The changing context • ‘individualisation’/employment rights/legal dependency • changing patterns of demand – the challenge of engagement • changing patterns of supply – the challenge of resourcing

4. Changing patterns of supply – the impact of demography • labour scarcity • “feminisation” - by 2011, 82% of extra jobs will be taken by women • the “greying” of the workforce - by 2006, 45-59 year olds will form largest group in work force • declining birth rates: by 2011 >16s will make up only 18% of population • more young people into higher education • longevity • ethnic minorities to account for 50% of growth in working population over next decade • migrant workers to play key role

5. The collective dimension – recent developments • pluri-annual agreements • procedural differentiation eg ‘two-tier workforce’ arrangements • shifting the focus – from ‘distributive bargaining’ to ‘integrative bargaining’ eg NHS Agenda for change • ‘partnership’ arrangements • new consultative forums • [‘assisted negotiation’?]

6. The collective dimension – on-going problems and issues • fragmented pay determination • the Treasury/macro-economic policy – implications for numbers/pay + ‘no-strike’/’arbitration’ deals • ‘competitive’ rather than ‘deliberative’ governance

7. The individual dimension – policy and practice issues • encouraging ‘moral panic’ – the case of attendance • statutory discipline and grievance procedures • ‘fast track’/’fixed period’ conciliation • reform of the employment tribunal system • promoting ADR (alternative dispute resolution)

8. The individual dimension – major uncertainties • Employment tribunal applications are down - 2004/05 = 86,943 individual conciliation cases • not yet clear, however, if a temporary phenomenon reflecting eg people adjusting, different approach by Tribunal officials • or whether it is permanent, eg more people using workplace procedures or being put off by length and complexity of application form • the future of Acas conciliation (differential service standards, another public spending review, DCA aspirations)

9. The individual dimension – a portfolio of ADR possibilities • neutral fact-finding/evaluation • conciliation/ ‘facilitative mediation’ • mediation/ ‘directive mediation’ • varieties of arbitration/expert determination • ombudsmen/women arrangements • combinations eg ‘med-arb’

10. ADR – the benefits • workplace disputes are costly. • if you are an manager, they take up valuable time and distract employees from the job = loss of performance, not to mention stress • if you are an employee, they take up time and energy and adversely affect life in and out of the workplace • compared to the Tribunal route, mediation is informal, less stressful, quick, voluntary, confidential and relatively cheap • can produces better outcomes, including ‘repairing’ employment relationship • can also help to produce a virtuous circle of employment relations, promoting trust/ engagement/cooperation

11. ADR – how it ‘works’ • brings an opportunity to change the dynamics of the situation, allowing parties to air their frustration or anger in a ‘safe’, less confrontational environment • gives people the chance to ‘draw breath’ and get back into talks • keeps communication channels open by using neutral or unemotive language and enabling people to get feedback on the strength of their case • makes it possible to introduce fresh ideas - the process of challenging ideas or probing for the logic of existing positions can itself help to find new solutions • spelling out the consequences of failing to reach a resolution in an uncompromising way can also be extremely valuable – for instance, the positive impact on customer confidence or job security

12. Acas’ NHS ADR pilots • volunteer trusts • Acas advisory resource to assist in scheme design • accreditation of internal mediators • familiarise managers and representatives in mediation scheme • evaluation of the scheme after 6 months

13. ADR – the major barriers • legal dependency too embedded? • employer has to bear ‘direct’ costs • culture – ‘conflict management’? • climate of collective dimension • needs commitment/encouragement to use/wider training

14. A forward look – rising to the challenge of legal dependency • enormous potential for information and advice as well as ADR but …. • needs acceptance of wider role for Acas – with implications for funding regime • needs acceptance of the ‘employment relations matters’ message • needs a joined-up approach to policy – the language of ‘market failure’ doesn’t help • fitting in the CEHR • [an Employment Rights Commission?]