Towards ‘representative actions’ in resolving workplace disputes

In current debates about improving the resolution of employment disputes and reducing employment tribunal claims, trade unions and other campaigners have advocated the introduction of ‘representative actions’ covering groups of individuals. However, following two recent review papers on the public consultation on dispute resolution in the workplace, the government seems likely to reject such proposals.

On 21 March 2007, the Department for Business, Enterprise and Regulatory Reform (BERR) initiated a public consultation over proposals on Resolving disputes in the workplace (325Kb PDF), aimed at improving the resolution of individual employment disputes. This article reviews the issues raised, focusing particularly on the possible introduction of procedures to ‘streamline’ the management of multiple individual claims through the employment tribunal and court systems.

Background

The consultation follows concern in recent years about the growth in workplace litigation and the pressure and costs placed on the employment tribunal system. The Employment Act 2002 (UK0210103F) paved the way for procedures intended to encourage dispute resolution in the workplace but little impact has been evident thus far. In 2002–2003 – the year before the new procedures took effect – some 115,042 tribunal claims were lodged. This number has more than doubled since then, with 238,546 claims lodged in 2006–2007. Many of the government’s current proposals focus on reforming the 2002 legislation and include measures to spread best practice and to extend the use of alternative dispute resolution procedures.

Multiple claims

A particular feature of recent tribunal statistics has been the rising number of multiple applications from groups of individuals citing the same grievance with the same employer. Such claims represent about half of the total number of claims each year. Increased litigation over equal pay has been particularly marked, rising from 8,249 claims in 2004 to 44,013 in 2006–2007.

Trade unions have been active in these areas for some time and have become adept at submitting multiple claims in support of pay bargaining objectives. Increasingly, however, they have been joined by ‘no-win, no-fee’ law firms advertising to gather large numbers of claims, particularly from public sector workers frustrated by the slow pace of negotiated reforms to pay structures.

Under the British legal system, managing multiple claims is extremely complex for all parties. Every employee bringing forward a grievance has to complete an individual claim; tribunal officers conduct pre-hearing assessments and the employer is obliged to respond to each one. The government’s consultation document therefore included a proposal to allow multiple cases to be ‘streamlined’.

It is not yet entirely clear what this might mean in practice but many trade unions, employment advisers and equality groups have taken the opportunity to advocate the introduction of ‘representative actions’. In other legal systems, including those in Australia and Canada, bodies that can demonstrate their ‘standing’ with the constituency of claimants – that is, an ability to represent their views – are able to take legal proceedings on their behalf. Apart from a few very limited circumstances, such as failure to consult over redundancies, such a procedure has been absent from British employment law, while trade unions and other groups would like to see it extended.

Commentary

This development highlights a fundamental shift in the role of legislation in British employment relations. It is likely that such a procedure would effectively allow trade unions to use legal means to influence the terms and conditions of employment of non-union workers, as well as of unionised ones. The trade unions argue that representative actions would make employment law more effective and aid dispute resolution. The time and cost pressures on individual litigants would be improved. Furthermore, evidence from other countries suggests that negotiated outcomes are more likely in cases involving representative bodies.

At present, however, it seems unlikely that representative actions will enter the employment law arena. The government has consistently demonstrated a determination to accord statutory rights primarily to individuals rather than representative bodies. Despite lobbying from the former Disability Rights Commission and Equal Opportunities Commission, for example, the enforcement powers of the new Commission for Equality and Human Rights (CEHR) have been limited. Similarly, marked caution on the issue has been evident among those charged with reviewing employment law. The government’s discrimination law review consultation paper (690Kb PDF), which was published in June 2007, noted that, ‘a number of stakeholders, including business, have expressed reservations about creating a further mechanism for litigation’. The review of employment dispute resolution in Great Britain (367Kb PDF) – carried out by Michael Gibbons for the government and published in March 2007 – likewise refused to endorse the call for representative actions, citing ‘strong views that representative actions can encourage speculative and spurious claims’ (p. 50).

Reform is likely to focus on simplifying the administrative requirements in multiple cases. Whether these will improve the cost and efficacy issues that have prompted this consultation remains to be seen. However, litigation by individuals and by groups seems set to remain an established part of the employment relations scene.

Trevor Colling, IRRU, University of Warwick

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