Thematic feature - individual labour/employment disputes and the courts

Notes.

* As identified by ETS staff as the principal type of claim when first received. A claim may be brought under more than one jurisdiction or subsequently amended/clarified in the course of proceedings, but will be counted only once against the main jurisdiction.

** Includes approximately 12,000 part-time worker pension cases

Source: Employment Tribunal Service annual reports.

Around 4% of tribunal decisions are appealed. In 2002-3, a total of 1,938 potential appeals were received of which 1,170 were registered by the EAT.

The annual public cost of running the system is as follows:

• ACAS individual conciliation - GBP 20.5 million (2000-1 figures);

• ETS operating costs (including staff and full time chairs of tribunals) - GBP 64 million (2002-3 figure); and

• EAT judicial salaries and related costs - GBP 888,000

The above figures exclude fees paid to part-time ET chairs and members.

Litigation timeframe

Where possible, please provide statistics on the timeframe within which court cases over individual labour/employment disputes are settled.

The ETS aims to get a case to first hearing within 26 weeks of receipt of application and achieves this in around three-quarters of cases. Tribunal decisions are usually (85%) issued within four weeks of the final hearing.

There is a backlog of cases at the ETs, many of which are cases relating to the exclusion of part-time workers from occupational pension schemes. The total backlog of cases from previous years (from 1997) as at March 2003 was 106,621, which included over 47,000 part-time worker pension cases (these cases had been awaiting a ruling from the House of Lords, now given, and the backlog is gradually being cleared).

In 2002-3, nearly all appeals to the EAT were registered for a preliminary hearing within six weeks, and around three-quarters get to a first hearing at the EAT within 39 weeks of receipt.

Other means of resolving individual disputes

Is there any kind of legal mechanism forcing or encouraging the two parties (management and employees) to resolve a dispute by prior negotiation? Where there is such a mediation process foreseen, please give details. Is there any evidence that mediation has had an effect on the volume of claims handled by courts? Are there any corporate policies built into the structure of organisations in your country specifically to deal with disputes? How are the employees’ representative bodies involved in the process?

Only a minority of claims made to employment tribunals (about one-quarter) actually reach a tribunal hearing. The legislation makes provision for compromise agreements to be reached. Around 40% of claims are settled as a result of conciliation by ACAS, acting under its statutory duty to offer conciliation in such cases, while about 33% are withdrawn, settled privately or abandoned. ACAS settlement rates vary by jurisdiction, being higher in claims of unfair dismissal, for example, than in the discrimination jurisdictions.

It is estimated that only some 15%-25% of disputes that involve a breach of legal rights go to tribunal and it is still only a minority of employers that face such claims each year. Workplace Employee Relations Survey (WERS) data for 1998 revealed that 13% of workplaces had had at least one tribunal application lodged against them in the preceding year, while 71% of workplaces had had no tribunal claims made against them in the past five years.

Many disputes which could fall within the jurisdiction of the employment tribunals are settled in the workplace. This is particularly so in unionised workplaces, which are under-represented in cases going to ETs. Grievance procedures are reported to exist in 88% of workplaces, although they are less common among smaller employers (which are disproportionately involved in ET claims), and survey evidence suggests that grievance procedures are not always used by ET applicants even when they do exist.

Debate

Please summarise any current debate on the issue of employment/labour disputes litigated by courts in your country.

This has been an area of much debate in recent years and a number of changes to the system have been implemented and others are forthcoming - for example, theEmployment Act 2002 (Dispute Resolution) Regulations 2004 (UK0210103F). Earlier changes to law and procedure in the 1980s and early 1990s were concerned with deterring applications and weeding out cases that seemed to have little chance of success. The intention of the ETs was to provide a more accessible, less formal, expert, cheaper and quicker alternative to the ordinary courts for the determination of individual employment rights disputes. Growing criticism from the social partners and independent observers that they were not delivering adequately on all these objectives, and government concern over the cost of the system, in the context of growing case volume and complexity, has led to a number of recent changes. These include the 'arbitration alternative' to ET determination (see above under 'System'). To date, this alternative has been available only in England and Wales and has been used very little, with only 23 cases going through this route at the time of writing. It was extended to Scotland from April 2004. Changes are informed by a government paper Routes to resolution: improving dispute resolution in Britain and the recommendations of a taskforce set up in 2001 (UK0111105N) to consider how the ET system could be made more efficient and cost effective. This involved the social partners and reported in July 2002. A mediation scheme for companies employing fewer than 50 employees is being piloted by ACAS in an attempt to reduce the likelihood of ET claims from this source.

Changes scheduled to come into effect in October 2004 focus on attempting to encourage the settlement of disputes at the level of the workplace. These include the introduction of statutory minimum discipline and grievance procedures (most employees will need to have raised a grievance with their employer before applying to an ET) and allowing variation in tribunal awards to support the use of these procedures (ie penalising non-use). Although there is general consensus concerning the desirability of resolving disputes at the workplace, the particular approach proposed in the relevant Regulations has been criticised by trade unions on a number of grounds including the restriction of the statutory procedures to use in cases of dismissal, rather than including other disciplinary sanctions. The Trades Union Congress (TUC) and individual unions also criticise the government for not making the requirement to comply with the statutory procedures an implied term in every contract of employment. Both the TUC and the Confederation of British Industry (CBI) have criticised the complexity of the Regulations. The government has promised that practical guidance will be developed with ACAS.

A number of changes are being made to ET procedures intended to improve the administration and management of the tribunal system. These include: a new mandatory application form; proposed changes to the costs regime; imposing a fixed period for ACAS conciliation (other than in discrimination cases); and new powers for ET chairs to sift out at pre-acceptance stage cases that should not proceed. This last mentioned change has been criticised by the TUC as a barrier to justice. (Linda Dickens, IRRU)