Ever since the introduction of the 2002 Dispute Resolution Regulations in 2004 - which set in stone a checklist for how all dismissals should be carried out - there have been pleas for it to be reversed.
The process started in December 2006, when Alistair Darling, then secretary of state for trade and industry, appointed Michael Gibbons to chair an independent inquiry to find out what had gone wrong. Within three months, Gibbons had produced his findings and this was followed by a lengthy consultation paper from the Government canvassing proposals for the way ahead. The DTI (now DBERR) collaborated with organisations such as the Employment Lawyers Association (ELA) to hear what it had to say.
The first step was the Employment Bill, published in December 2007, which is currently working its way through Parliament. Chief among its provisions is the repeal of the Dispute Resolute Regulations in their entirety. In its place will be the creation of an enhanced new role for ACAS.
ACAS itself has announced that from 1 April of this year it would ignore the 'fixed periods for consultation' introduced in October 2004 and would agree to conciliate all cases, at whatever stage they may happen to be. Then in May this year, it released in draft form its new statutory code for consultation. It is a much slimmed-down version of the code that we currently have and is designed to be non-prescriptive and flexible. It is supposed to be accompanied by some non-statutory guidance, to provide additional practical advice. In reality, most probably, it will simply fill in the extra bits that have been left out of the current code.
What was missing from all of this was the Government's formal response to all the replies to the consultation paper it had produced at the time Gibbons published his report. When, on 22 May, ELA invited Gibbons to address a national conference in London, to explain his vision for the future, the Government finally released its long-awaited response paper.
Many of its conclusions employment lawyers would agree with. Chief among them is that the Dispute Resolution Regulations need to be abandoned in their entirety. Other points include proposals for hearings in relation to certain matters by employment judges sitting alone. Also mooted is the idea of having an expanded Government advice service to help potential claimants understand the options open to them. The big questions remain though - who will staff these advice lines, and how consistent will the advice be from place to place?
It was clear during Gibbons' session at the ELA conference that there can be a marked difference between perception and reality. To the world of business, it may seem obvious that some claims are just not worth much in monetary terms, and that the cost of providing justice for them can be seen to be wholly disproportionate to the sums involved. An example given was of a security guard making a claim for unlawful deduction of wages for two weeks. On the face of it, the cost of having a full three-person industrial jury hear that case may be seen as disproportionate. But try telling that to the employee on a lowish salary whose wages have been unlawfully deducted.
Similarly, there may well be a clear logic in having disputes mediated (and therefore settled) long before they ever see a lawyer's office, let alone a court or tribunal. However, the reality is that many people are simply not ready to agree settlement until shortly before trial, when the prospect of a court appearance looms large.
None of this is to say that employment lawyers do not value the attempts made by the Government and Gibbons to right what went so horribly wrong in 2004. It is just that we must ensure the remedial process does not swap one set of problems for another.
Richard Fox is a partner at Kingsley Napley and sits on the management committee of the Employment Lawyers Association.
