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Mr Tom Evans |
Department for Employment and Learning |
1. The Chairperson (Mrs D Kelly): The next item is a briefing from DEL officials on the Employment (No. 2) Bill. This session is being recorded by Hansard. I welcome Tom Evans, employment relations, policy and regulation division; June Ingram, director of strategy and employment relations division; and Alan Scott, whose title I do not have to hand.
2. The Committee has worked with the Department over the last two years to bring the Bill to this stage. During the pre-legislative scrutiny phase, members already received evidence from a number of key stakeholders. The Committee produced a report of those evidence sessions in June 2009. No amendments to the Bill have been introduced at this stage. I now hand over to the officials for the presentation.
3. Ms June Ingram (Department for Employment and Learning): The Department appreciates the opportunity to present to the Committee the detailed provisions of the Bill. We will explain what it is intended to achieve. It looks to deliver on the policy proposals that were approved by the Executive following the completion of the dispute resolution review. The main provisions will be familiar to the Committee because they largely mirror the policy issues that the Committee surfaced during its consideration of the current arrangements for resolving workplace disputes. I will offer a quick overview of the key areas before a detailed run through the clauses.
4. The Bill is intended to establish a less legalistic framework for raising workplace grievances, while leaving intact a minimum legal standard for disciplinary and dismissal situations. It will repeal the conclusive provisions that link grievance and disciplinary processes to industrial tribunals and fair employment tribunal time limits. It will enable the Labour Relations Agency (LRA) to exercise greater discretion in offering its assistance to resolve disputes, while removing time restrictions for LRA conciliation. It will amend industrial tribunals’ powers to reach a determination without a hearing when the parties consent. It will enable the fair employment tribunal to hear aspects of cases that currently require a separate industrial tribunal hearing; and it will introduce the legislative framework for the right to request time to train.
5. We recognise that the Committee has a strong interest in these policy areas and that it will want to take further evidence from key stakeholders in its consideration of the content of the Bill. We restate our commitment to support the Committee through its stage of the Bill, and we are available to come back to provide further evidence as the Committee wishes.
6. The Bill is substantial; it has 18 clauses and four schedules. I hand over now to Tom Evans to go through the Bill, clause by clause. Alan Scott, who has also been directly involved in drafting, is also here to answer questions as appropriate.
7. Mr Evans (Department for Employment and Learning): As June has said, the Bill has 18 clauses and four schedules, so it has grown during the time that we have been with the Committee. In their papers, members have a copy of the Bill, and they will see an expanded financial memorandum and also a delegated powers memorandum.
8. I will cover the purpose of each clause and highlight areas where the Bill seeks further delegated powers. We have tried to marshal together some of the clauses where they seek to produce the same policy intent or process improvement. I will go through each clause. I am happy for members to ask questions as they arise or at the end, if they find it helpful.
9. The Chairperson: Yes, that would be helpful. For me, the burning question, besides the improved policy frameworks, is whether any cost savings will be realised.
10. Mr Evans: Yes. The first clause concerns the repeal of the statutory grievance procedures. That is a deregulatory measure that amounts to something in the order of £1·5 million immediately. We have been very conscious of the issues around efficiency, effectiveness and any opportunity to reduce. Deregulation by repealing the statutory grievance procedures will have an immediate net benefit to employers.
11. The Chairperson: Given the time that is in it, that is welcome news to all our ears.
12. Mr Evans: I will take clause 1, the repeal of the statutory grievance procedures, and schedule 1 together. I do not need to say much other than that that will repeal the procedures. The current procedures require an employer to put a complaint in writing before bringing it to tribunal. They also require the adjustment of a relevant award where an employee and an employer have unreasonably failed to participate in a subsequent meeting. That is the current three-step procedure.
13. It is clear from the review — the Committee took its own evidence on this — that the statutory grievance procedures were not welcomed. The procedures were well intentioned but problematic and there is universal consensus that they should be removed. Criticism was not levelled at the statutory discipline dismissal procedures and, therefore, the Bill does not propose to repeal those.
14. Clause 2 — statutory dispute resolution procedures and the effect on contracts of employment — repeals article 16 of the Employment (Northern Ireland) Order 2003, which implies in every contract a duty to observe the statutory dispute resolution procedures in circumstances specified by the Department in regulations. The provision that we propose to repeal was never commenced and there is no demand for it. In reality, it has been repealed in GB. If the provision had been commenced, there may have been increased litigation on process as opposed to on how people are being treated, which would have been similar to some of the problems with the statutory grievance procedures. Therefore, the clause proposes to repeal a provision that was never commenced.
15. Clause 3 concerns statutory dispute resolution procedures and the consequential adjustment of time limits. Currently, where parties comply with the statutory dispute resolution procedures, there is provision for automatic extension by three months of the time for lodging a tribunal claim. Clause 3 repeals the relevant powers. I will go back to the previous position, in which employees had a set period of time, usually three months, in which to lodge their claim with a tribunal. A tribunal had the power to continue to accept claims lodged outside that time where it considered that it was not reasonably practical for the claim to have been presented in time, or in certain jurisdictions where it decided that it would be inequitable to allow the claim. The benefit of the change is that it removes a provision that caused confusion. Through the consultation, we saw that people were confused. Clause 3 sets out the time as three months but states that a tribunal will exercise its discretion when it thinks that it is equitable to do so.
16. I will deal with clause 4 — non-compliance with statutory codes of practice — with schedule 2. Clause 4 amends the Industrial Relations (Northern Ireland) Order 1992 to support the non-statutory approach to grievances that will replace the statutory grievance procedures. The changes will establish the context for a revised code of practice that the Labour Relations Agency will produce, setting good practice standards to which employers and employees will be expected to adhere. Failure to comply with the new code would enable a tribunal that considers that inequitable to increase or reduce a relevant award by up to 50%. The Labour Relations Agency, in consultation with us, has already initiated work on a new code of practice and has, in the past few days, released a draft code. That draft code will now go out for a 12-week consultation and we hope that all key stakeholders will input to that. In the UK, there was some criticism of the Advisory, Conciliation and Arbitration Service’s (ACAS) draft code of practice. Therefore, we want the Labour Relations Agency’s code to be fit for purpose and for people to be comfortable with it and believe that it is workable.
17. There are delegated powers. The Bill seeks for the Department to be empowered to modify the list of jurisdictions in schedule 4A that would be covered at a tribunal. That is purely to cover the ability to amend those jurisdictions. Employment law is fairly dynamic and, therefore, if we do not have those powers, we will have to come back on the Bill.
18. That takes us to clause 5, which relates to determination of industrial tribunal proceedings without hearing. The clause specifies that the determination of tribunal proceedings without hearing will be permitted only when all parties to the proceedings consent in writing to that process, or when one of the parties presents no response to the proceedings or does not contest the case. That will enable certain simpler cases to be heard on a fast-track basis where parties agree and facts are not disputed. That is really an efficiency measure. It will be for the tribunal to decide how often that will be used. The Bill does not seek additional delegated powers. In fact, the provision restricts the exercise of the existing powers to authorise tribunal proceedings without a hearing. Therefore, parties must consent in writing, not contest the case, or not respond to the claim.
19. That takes us to clause 6, which relates to restriction of publicity. The clause makes it possible for industrial tribunals to restrict publicity in a wider range of circumstances than are presently available to them. Currently, a restricted reporting order may be made in proceedings involving allegations of sexual misconduct. The clause extends the power to cover individuals in relation to whom the disclosure of identifying matter would be likely to cause risk to themselves or their property, and situations in which the tribunal considers such an order to be in the interests of justice.
20. Extended powers to restrict publicity are required so that individuals are not discouraged. That is about encouraging people to participate fully in tribunal proceedings, particularly in areas where sensitive personal information must be disclosed. Recent case law has highlighted the absence of express powers in that area. There is a very general power, the justification of which requires the tribunal to go into significant work. Clause 6 makes it more explicit where the tribunal can restrict publicity in certain cases.
21. In relation to delegated powers, existing regulation powers allowing for the making of a restricted reporting order are expanded to cover the circumstances that we have just set out in new article 13(1A) of the Industrial Tribunals (Northern Ireland) Order 1996.
22. The Chairperson: We know that in fair employment tribunals, for example, there are compromise agreements, which involve a clause of silence or jeopardise the settlement. There is a no blame culture, but it allows organisations to cover up bad practice. How are you going to ensure that this is explicit?
23. Mr Evans: This is not a tribunal proceeding. The compromise agreement is where the case does not progress finally to a tribunal. The compromise agreement is where there has been an agreed settlement between both parties. The reality is that those compromise agreements are confidential, and it would be remiss of the Department to start in any way to interfere with that process. When the Labour Relations Agency is brought in to conciliate a settlement it is done on a confidential basis, but this is very much about the territory of when a case goes to tribunal proceedings. It is about access to justice. It is about not restricting access because somebody is fearful that if they disclose something in tribunal proceedings it may result in some adverse things happening to them as an individual. Some of these phrases are quite lengthy.
24. The Chairperson: The notes are very helpful.
25. Mr Evans: Clause 7 relates to enforcement of sums payable. Again, that is an efficiency measure. At present, where a tribunal orders a party to pay an award and the party fails to do so, a party seeking enforcement through the courts must first register the matter with the County Courts through the enforcement of judgements office. The County Court will then issue an order for enforcement.
26. This clause removes that unnecessary intermediate step. People have been irked by it, and the message — “This is a quick win; please do it" — came right across the table. This is very much an efficiency measure and a process improvement measure.
27. That takes us to clause 8, and I propose to take clause 12 with it. The same policy intent is behind both. Clause 8 deals with industrial tribunals and clause 12 with fair employment tribunals. Clause 8 is about conciliation before the bringing of proceedings. Currently, where parties to a dispute that could result in a tribunal claim seek assistance from the Labour Relations Agency, the agency has a duty to provide that assistance even if there is no prospect of a conciliated settlement. The clause converts the LRA’s duty to a power, enabling the agency to target its resources more efficiently at cases that are more amenable to resolution. The aim is to enhance the agency’s pre-claim conciliation service, a policy that was very much advocated by stakeholders. That has been the direction taken in GB by ACAS, which piloted pre-claim conciliation. The increased emphasis on pre-claim intervention will benefit everyone. It is about earlier resolution and targeting resources. At a time when resources are at a premium, it is important to give the agency that flexibility.
28. Clauses 9 and 13 deal with conciliation after the bringing of proceedings, to either an industrial tribunal or the fair employment tribunal. The Labour Relations Agency has a duty to offer conciliation to parties involved in particular types of industrial tribunal cases, which is currently time-limited to between seven and 13 weeks after a claim has been lodged. More complex cases in both tribunals are not subject to those limits. After the time limit expires in the relevant cases, the LRA is no longer under a duty to offer conciliation, but retains the power to do so. These clauses remove the provisions requiring the LRA’s duty to offer conciliation, and that duty reverts to a power. The original intention of that was to focus the parties’ minds on early resolution, but the review has shown that, in practice, the seven and 13-week time limits were an issue and, to be fair to the Labour Relations Agency, unlike ACAS, it continues to offer a service beyond 13 weeks. We are bringing the legislation into line with the existing practice.
29. We propose to take together clauses 10 and 14, concerning recovery of sums payable under compromises involving the agency. Clause 9 and clause 13 deal with industrial tribunals. This is about compromise agreements relating to cases lodged in both tribunals. The clause has a similar purpose to clause 7, with which I have already dealt. It deals with LRA-brokered settlements of issues that could be determined by tribunals. Where a settlement includes an agreement for one party to pay the other a sum of money, that sum is not paid, and the other party wishes to enforce payment, the clause enables the party seeking payment to pursue the matter through the courts without the need to seek a County Court order for enforcement. Clause 7 is related to that process improvement. The clause applies only in cases where the conciliated settlement simply requires the claimant not to commence tribunal proceedings or where he has begun to end them. Where the conciliated settlement terms are more complex — where, for example, there is a range of conditions — it will not be possible to use that process.
30. The clause removes the paperwork and expenses associated with the current requirement to seek a County Court order for enforcement. Currently, registration of unpaid sums in the County Court carry a small cost so, here again, there will be a small cost saving to the party seeking that enforcement order. The Bill seeks delegated powers whereby the Department may make regulations concerning the time an application may be made to tribunal for a declaration that a compromise sum is not recoverable. Provision is also made by County Court rules on the period during which a sum is not recoverable. This means that either the Department could make regulations on this matter, or the declaration could be made by the County Court. That is to ensure that the provisions are sufficiently comprehensive to cover both situations.
31. Those are very technical issues over which we have laboured to the point that our eyes have sometimes glazed over. However, they are important to improve process, procedure and facilitating administration post the transfer of justice powers.
32. Clause 11 provides powers for fair employment tribunals in relation to matters within the jurisdiction of industrial tribunals. As June Ingram mentioned briefly in her introductory remarks, clause 11 is very much an effectiveness measure in access to justice.
33. Alongside the fair employment aspect of the complaint, the fair employment tribunal currently has the power to hear additional aspects of that claim that relate to other forms of alleged unlawful discrimination where there is a claim of unfair dismissal. Any other aspect of the complaint, such as a claim for unpaid wages or breach of contract must be heard and determined by a separate industrial tribunal. Because all aspects of the claim arise from the same set of facts, it was clear from the consultation that that was seen as an unnecessary duplication and an inefficient way of moving forward.
34. We consulted with the president of the industrial tribunals and the fair employment tribunal, who was encouraged that such an approach would improve the service to the respondents, the employers and claimants — the employees. Therefore, the aim is to amend the existing legislation to remove that anomaly so that the fair employment tribunal and all industrial tribunal aspects of a case can be heard in a single tribunal setting. In reality, many cases in Northern Ireland are not simple; they cover a significant number of jurisdictions.
35. The Chairperson: Is any of this in response to a report stating that the majority of people who put in a claim give up because the process is so elongated, complex and costly that many never get justice?
36. Mr Evans: It was not in response to any particular report or comment from organisations. The Bill is a recognition that, from an employer and an employee’s perspective, the legal system is quite complex. However, in no legal setting other than employment would the same case and set of facts go to two separate tribunals. “No-brainer" is a horrible phrase, but one that jumped out all the time.
37. The Chairperson: Who introduced it to begin with?
38. Mr Bell: Lawyers. [Laughter.]
39. The Chairperson: If it is such a no-brainer, how did it get to be there in the first place?
40. Ms S Ramsey: Civil servants.
41. Mr Evans: The Hansard report may state that there was a pause there. [Laughter.] I think that I have covered that subject enough.
42. That takes us to clause 15, which relates to schedule 3 and deals with the bulk of the Bill’s provisions for dealing with the dispute resolution review. In the debate at Second Stage, we drew the attention of the House and the Committee to the Department’s desire to introduce the right to request time off for training. Clause 15 would amend schedule 3 to enable that.
43. The provisions would allow for the subsequent introduction of a new right for a qualifying employee — somebody with 26 weeks continuous service with their employer — to formally request that their employer give them time away from core duties to undertake study or training. Such an application would have to be for study or training that is intended to improve an employee’s effectiveness at work and the effectiveness of the employer’s business.
44. Under the Bill, employers would be obliged to give serious consideration to such a request and could turn it down only on the basis of one of a specified list of business reasons. That list is comparable to the one that is already provided for in respect of requests for flexible working. The permissible grounds for refusal are listed in schedule 3 of the Employment Rights (Northern Ireland) Order 1996. The provision to request study or training leave is based on those very successful flexible working arrangements.
45. In his address at Second Stage, the Minister gave a commitment that the right would not be introduced until it has been determined that the economic conditions are favourable for such an introduction. The provisions are on the statute book in GB, but, as you mentioned, Chairperson, they are looking at opportunities for deregulation, as are we. We will watch with interest what happens in the rest of the UK.
46. At this stage, it is a right to request time to train, not a right to time to train. It will introduce the powers only. There is no movement, at this stage, to introduce the regulations to commence those powers. The Minister will take a view on that when the economic conditions are right. We will come back to the Committee on that.
47. Ms Lo: It relates to part-time studies. One can say that he or she is going to take a year out to do a master’s degree, for instance.
48. Mr Evans: Yes. It relates to taking time out for training that is relevant to the business and which will improve the employee’s effectiveness and the business’s productivity. There is a range of ways in which people can take training. They can take training through time off, or a part-time Open University degree, for instance. There is a variety of training. There is flexibility on the nature of the training provision, but it is made clear that it must contribute to the employee’s effectiveness, and it must benefit the employer.
49. An individual might say that he or she wants to go away for two years. If that were going to severely impact the effectiveness of the employer’s business in some way, the employer may depend on one of the provisions to turn down such a request.
50. Clause 16 sets out the existing provisions that will be repealed as a consequence of the earlier provisions in the Bill.
51. Clause 17 deals with the commencement of the legislation. It provides for the commencement of the Bill on dates to be specified. We are seeking to try to progress the Bill through its legislative stages so that the provisions will come into effect from April 2011. That would mean that the powers were in place by April 2011.
52. On delegated powers, the Department is empowered to commence the provisions of the Bill on days that it may appoint. We will be working with the Committee to alert it to that, and it is obvious from the debate that we want to commence from April next year.
53. Mrs McGill: I would like some clarification on clause 8, which deals with conciliation before bringing of proceedings. The paragraphs of the explanatory and financial memorandum that deal with clause 8 state that the intention of the amendment is to enable the LRA to prioritise cases where demand for conciliation exceeds available resources. I may have misinterpreted you, but is it the case that if the LRA had sufficient resources, the LRA would proceed?
54. Mr Evans: The intention is to remove the obligation, which is currently required in every circumstance, even when the work that an individual would do would be nugatory and there is no potential for a settlement. Under current legislation, they have to continue to offer that service to anyone who comes along.
55. That is the intention behind it.
56. Mrs McGill: Is that linked with what follows? Are you saying that that is not a reason in itself? Are you saying that where the demand for conciliation exceeds available resources, that is a discrete reason for not continuing?
57. Mr Evans: No.
58. The Chairperson: Are you worried that people will decide not to proceed on the basis of finance?
59. Mrs McGill: I am looking for clarification. Is it because the resources might not be available and the LRA will have difficulties resourcing that kind of service? In my view, that would be a mistake. Is that what it is saying? If so, we need to look at it again.
60. Mr Evans: It is saying that it allows the LRA to target its resources. At the end of the day, all organisations have a finite set of resources, and there is probably an infinite requirement out there. However, regardless of whether 100 people or 20 people approach the agency, there is no added value in providing the service. However, at this stage, there is a duty to do that. The proposal will enable them to take that professional judgement and reallocate their efforts to where they can add value and bring settlements.
61. Mrs McGill: I agree that time should be spent wisely, but I need to ask the same question. Could this happen because the LRA will not be resourced properly?
62. Mr Evans: No. It is purely about giving flexibility to the agency. The agency is probably better placed to say this, but it has a helpline that attracts thousands of callers. Given the economic difficulties at the moment, we understand that the helpline has experienced an increased volume. This is about enabling the LRA to target its resources to best help employees who are in difficulties and employers to resolve differences in a fair and equitable way.
63. Ms Ingram: It gives the agency the flexibility to make decisions.
64. The Chairperson: Yes. However, you can see how others could interpret it.
65. Mr Evans: In real terms, it will increase the potential resource by using resources more effectively. It will reduce potential wastage.
66. The Chairperson: Mrs McGill is saying that it needs to be much clearer that it will be determined by that factor rather than by a financial or resource imperative.
67. Mr Evans: When somebody rings the LRA for help and there is no prospect for it to help, it will not say that it cannot help but will, I imagine, modify the level of service.
68. The Chairperson: The LRA will be before the Committee next week, and we can tease that out further. It is a matter of interpretation, and members seem to want the usage to be explicit rather than implicit.
69. Ms Ingram: It is about ensuring that the right legislative framework is in place. The next stage is how to use that.
70. Ms Lo: That is what I was going to say. Clear criteria need to be set out to enable people to understand under what circumstances the LRA will not take a case forward rather than allowing LRA officers to determine that. People need to know which cases are not likely to be accepted. For example, the Equality Commission now makes it very clear that it will not deal with certain cases, and, as a result, people do not bring those cases.
71. Mr Evans: Yes. As regards LRA, the level of service that it can offer will always be a matter for its professional judgement. That will always be its judgement call. I do not believe that the intention was to set criteria because that in itself would create huge problems. To set criteria acts as a kind of benchmarking exercise. At the end of the day, when people ring up, they may or may not know what they need at that stage. I imagine that professionally trained conciliation and helpline staff is a matter for LRA. We never had any intention to set criteria for that. Perhaps, the explanatory and financial memorandum is not helpful. Our main intention was purely to provide the agency with flexibility to deliver its service.
72. The Chairperson: It did not have to continue to flog a dead horse, to use a country expression.
73. Mr Evans: That is absolutely right, Chair. [Laughter.]
74. The Chairperson: Next week, we can tease out the matter of interpretation further with LRA. I understand where you are coming from. Obviously, people are worried about how it might be interpreted in difficult financial circumstances. We can pick that up with LRA.
75. I believe that that is the end of the presentation. Thank you all very much for coming along. The aim is on target to be met. It is worthwhile. Certainly, a great deal of work has been done in advance to get the Bill to this stage. We do not anticipate a great deal of difficulty apart from those levels of clarification that members require.
76. Mr Evans: Thank you.
Members present for all or part of the proceedings:
Mrs Dolores Kelly (Chairperson)
Mr Jonathan Bell (Deputy Chairperson)
Mr Sydney Anderson
Mr Paul Butler
Rev Dr Robert Coulter
Mr Chris Lyttle
Mr David McClarty
Mrs Claire McGill
Mr Pat Ramsey
77. The Chairperson (Mrs D Kelly): I know that some members are pushed for time. We plan to informally scrutinise the first two sections of the Bill, which includes the first 10 clauses. The Committee will receive two further briefings on the Bill. This is a preliminary and informal scrutiny of those clauses.
78. The Committee Clerk: I want to stress that this is not the river of no return; it is just an informal look. We will try to get through the first 10 clauses, and we will not go any further. Any Bill is fairly hard to read. Therefore, I am going to give the background to each clause, and members can raise any issues that they may have.
79. The first clause is about the repeal of statutory grievance procedures, and it really does just that. It removes the statutory grievance procedures from statute. The current procedures require an employee to put a complaint in writing before bringing a tribunal complaint. They also require an adjustment of a tribunal award where an employee or employer has unreasonably failed to participate in a subsequent meeting or appeal. The removal of those takes that elaborate and deliberate process out of the way. The whole new focus is to try to bring dispute resolution in the workplace to the local level, where you would try to solve the dispute before you got into the whole written procedures and processes. The first clause removes what is already there so that a new system can be put in place.
80. Clause 2 is another repeal clause. It repeals article 16 of the Employment (Northern Ireland) Order 2003, which implies in every contract of employment a duty to observe the statutory dispute resolution procedures in circumstances specified by the Department. Effectively, we have removed the statutory procedure, and therefore we have to remove the instruction to employers that they have to use the statutory procedure.
81. An awful lot of this Bill is about taking away lots of things in different pieces of primary legislation to achieve something simple and straightforward. Unfortunately, that is part of the problem. A lot of laws and other things have to be dismantled before this law can go forward. Clause 2 takes out the mechanism where employers are forced to use the procedure that is being repealed. If, at any point, this becomes nonsensical, please stop me.
82. The Chairperson: It is fair to comment that trade unions and the employers’ organisations largely support the legislation. It should not be controversial.
83. The Committee Clerk: The Committee did about 18 months’ preparatory work before the Bill even came, and it has had sessions with the various groups and stakeholders.
84. There is currently provision for automatic extension, by three months, of time for lodging a tribunal claim where parties comply with the statutory dispute resolution procedures. Clause 3 repeals that. If we lose the procedures, we have to lose all the instructions to employers that go with those procedures. As I said for clause 2, if the procedures no longer exist, you cannot maintain the laws that are telling employers to enforce them. Again, it is just taking that out of law. The process is very technical and detailed but it needs to be done, otherwise we have random bits of law talking about procedures that no longer exist. It is just another clause that takes out those references from employment law.
85. Clause 4 is relevant to schedule 2. It amends the Industrial Relations (Northern Ireland) Order 1992, which supports a non-statutory approach to grievances, replacing the statutory grievance process that the previous three clauses have dismantled and taken away. That change will establish the context for a revised Labour Relations Agency (LRA) code of practice that will set out good practice standards to which employers and employees will be expected to adhere. Failure to comply with the new code will enable a tribunal, if it considers it just and equitable to do so, to increase or reduce a relevant award by up to 50%.
86. Really, all that that is saying is that, now we have taken out the existing grievance procedure, this is what is being put in its place: new relationships and codes with the LRA, and also mechanisms to adjust tribunal awards. Those must be put in place because the Bill will remove the old system.
87. Clause 5 specifies that the determination of tribunal proceedings without a hearing will be permitted only when all parties to the proceedings consent in writing to that process, or when one of the parties presents no response at all in proceedings or does not contest the case. This is really trying to simplify the whole process, so that people are all aware of what is going on and are all saying that, at this point, they are ready to participate in the process.
88. Again, that is needed because we have taken away the old grievance procedure and we need something else in its place that everyone is agreeing to, or, through not specifically agreeing, the kind of tacit agreement. That is what we are saying — if they do not present any response, that is taken as tacit agreement. There is really no way round that. If you perpetually expect a written response from someone that is not going to come, it will delay proceedings for an inordinate amount of time. That has been part of the problem with the existing process. This basically means that everybody gets to the point of saying that they are happy to go with it. You are given a certain amount of time to object to it if you are not happy. If you do not object, then that is it; the process goes ahead. That just tightens everything up and makes it that bit faster.
89. Clause 6 is important. Its provisions make it possible for industrial tribunals to restrict publicity in a wider range of circumstances than at present. Currently, a restricted reporting order may be made in proceedings involving allegations of sexual misconduct. Clause 6 extends that power to cover individuals in relation to whom the disclosure of identifying matter would be likely to cause risk to themselves or their property, and situations where the tribunal considers such an order to be in the interests of justice. It just gives greater flexibility in shielding people whose identification in a tribunal case might make them or their property liable to some kind of attack by way of retribution. This really just offers them greater protection. Previously, the only people in that category were those accused of sexual misconduct. This broadens that out to include a lot of other groups.
90. Clause 7 refers to the enforcement of sums payable from a tribunal. At present, where an industrial tribunal orders a party to pay an award and that party fails to pay the award, a party seeking enforcement through the courts must first register the matter with the County Court through the Enforcement of Judgments Office. The County Court will then issue an order for enforcement. This clause amends that, removing the unnecessary intermediate step. Basically you are going straight to the County Court to enforce of the judgement; you do not have to go through the processes in between. The idea, again, is to make everything neater, tighter and faster. One of the major complaints made in the evidence that we took on the existing procedures is that they take far too long. In taking a long time, enforcement was seen to be ineffective. Clause 7 cuts out the middle part of the process by going straight to the County Court, making the enforcement of judgement, theoretically, that bit faster.
91. Clause 8 — and this also deals with clause 12, but we will be doing clause 12 again at a later date — is to do with conciliation before bringing of proceedings. That is effectively what the whole foundation purpose of the Bill was about — to try to localise dispute resolution, rather than getting into an elaborate process that is going to take a very long time.
92. Currently, where parties to a dispute that could result in a tribunal claim seek assistance from the LRA, the agency has a duty to provide that assistance, even if everybody has flagged up the fact that there is absolutely no prospect of conciliation — for example, if the parties involved are taking other action separately and in parallel to that, and it is totally clear that there will be no conciliation. The LRA is currently still forced to seek some resolution, which will tie up resources and time, when it has been clearly shown to have absolutely no meaning and that it is not going to go anywhere.
93. I know that this was an issue when we heard from the Department. I have had a think about it, and I think part of the issue was that the explanatory memorandum that came with the Bill talked a lot about resources, which perhaps made it appear that this clause was actually saying that the agency will do the cases that it can afford to do. That appeared to be the suggestion. The wording of the Bill itself is more specific, and it actually shows that the agency will prioritise the cases where conciliation is possible. At the moment, it effectively has to do each case in order, whether or not there is going to be conciliation.
94. If you think of it in terms of a list of cases — 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 — and it knows that 2, 4 and 7 are not reconcilable, at the moment the agency still has to deal with 2, 4, and 7. This allows the LRA to not deal with those cases where it has had clear indication that there is no conciliation possible, which means that it is likely to be able to deal with more cases in a shorter space of time, because the cases where there is no resolution are taken out of the equation. Where previously the LRA was forced by the word “must" to deal with each case, they are now using this word “endeavour", so that the LRA will only have to deal with the ones where there is a recognised potential conciliation possible. It is not a question of a cut in resources; that is not what is being flagged up here. It is simply that the LRA is saying that this will make its job more efficient and effective, and it will ultimately be able to deal with more cases that actually have the potential to be resolved. Does that make that clearer?
95. Mrs McGill: As you have outlined is, I have to say that you have done a good job in explaining it, and I understand exactly what you are saying. However, the memorandum is clear in what it is saying. It is my view that what is written there contradicts what you have articulated in many ways. It may well be that the intention is as you have outlined — and I accept that it is — but the memorandum states that:
“The intention of the amendment is to enable the LRA to prioritise cases where demand for conciliation exceeds resources available and to relieve the LRA of the obligation to offer conciliation in pre-tribunal disputes where there is no prospect of success."
96. I am aware that the memorandum is not the Bill, and so on, but, having listened to you, I accept what you have said.
97. The Chairperson: It may be the case that the memorandum could be made more explicit.
98. The Committee Clerk: As Mrs McGill has rightly pointed out, the memorandum is not the law; the Bill is the law. The memorandum is theoretically supposed to unpack the Bill and be useful in terms of supporting and interpreting it. In this case, having spoken to the people who drafted the Bill, it seems that the memorandum has interpreted the Bill in a particular way that gives additional meaning. I suggest that the Committee flag that up in its report, and obviously the Department is here and will be aware that the Committee is concerned about this. We also have the LRA coming, and it might be a useful opportunity to clarify with it how it sees this working.
99. The Bill itself does not indicate that it is an issue of resources, so this may be an occasion on which the memorandum has gone too far in interpreting, beyond what the Bill actually says. I have spoken to officials in the Department, and they suggested that the reading that I have given is the right one and that it is not going to be the case that people will not be heard because of lack of money; it is just the way that that was put. I think they were trying to be helpful by suggesting that dealing faster with cases than can be dealt with will ultimately be a better use of resources. They would understand what we are really saying about that being phrased in a clumsy way in the explanatory and financial memorandum, but it is an issue that we will take up with the LRA when we have it as well.
100. The Chairperson: Obviously the concerns that we have highlighted to the Department in the hope that it will perhaps review the form of words in order to make it much more clear in the memorandum.
101. The Committee Clerk: Clause 9 is to be considered in conjunction with clause 13, which we will come back to at a later stage. It is conciliation after bringing of proceedings. Clause 9 deals specifically with industrial tribunals, which clause 13 mirrors in terms of fair employment tribunals.
102. The LRA has a duty to offer conciliation to parties involved in particular types of industrial tribunal case. It is currently time limited to between seven and 13 weeks after a claim has been lodged. More complicated cases, including industrial tribunal and fair employment tribunal discrimination cases, are not subject to those time limits. In relevant cases, after the time limit expires, the LRA is no longer under a duty to offer conciliation, but it can if it wants. It does retain that power to offer conciliation; it is just that no one is saying that it has to by law. However, I think you know that the operation of the LRA has been that, if its services are required, it will step up to the mark and provide them. Clauses 9 and 13 remove the legislative provisions requiring the LRA to offer conciliation, reverting to a power to do so. Basically, what we are saying there is that there is no longer a case of time limits having expired but the LRA still has to do something. It is now the case that the LRA will go ahead and do the job that it would have done before: if its services are required, it will provide those services. The clauses simply take away that legal obligation where it might not necessarily be required, leaving a power to offer that assistance if people need and want it.
103. Clause 10 is to be thought of in conjunction with clause 14. It has a similar purpose as clause 7. It deals with the LRA-brokered settlement of issues that could or otherwise would be determined by a tribunal. Effectively, it is where the LRA can provide that service and things do not have to go to tribunal. Where a settlement includes an agreement for one party to pay the other a sum of money, but that sum is not paid and the other party wishes to enforce payment — we talked about this before with taking out the middle step and going straight to County Court — the clause enables the party to pursue the matter through the courts, without the need initially to seek a County Court order.
104. Clause 10 applies only to cases in which the conciliated settlement simply requires the claimant not to commence tribunal proceedings or, where they have begun to do so, to end them. Where the conciliated settlement’s terms are more complex, it will not be possible to use this process. That could be described as speeding up the process and making it more direct, so you do not have to go and apply for a County Court order; you can take it straight to the court. That reflects what we heard in clause 7 about speeding up the process and taking out the Enforcement of Judgments Office’s need to go to the County Court in between as a step. This just means that you can basically take it straight to County Court.
105. We will leave those there and come back to this at another time. It is a very technical Bill.
106. The Chairperson: I think that members are content that most of the Bill actually makes sense and that it will help to speed up the process.
107. The Committee Clerk: I stress that a huge amount of consultation went into the Bill. Often, Bills are presented to Committees, but the Committee spent a huge number of months before actually coming to this stage. It has had a lot of thought.
Members present for all or part of the proceedings:
Mrs Dolores Kelly (Chairperson)
Mr Jonathan Bell (Deputy Chairperson)
Mr Sydney Anderson
Mr Chris Lyttle
Mrs Claire McGill
Ms Sue Ramsey
Mr Peter Weir
108. The Chairperson (Mrs D Kelly): We move to the continuation of the informal clause-by-clause scrutiny of the Employment (No. 2) Bill. The Committee reached clause 10 in its first session, with issues being raised over clauses 8 and 12. The Labour Relations Agency (LRA) will be briefing the Committee on 10 November, and members have its briefing paper. The paper raises the same issues about clauses 8 and 12 that members are already aware of, along with two further issues. A rewording of the explanatory and financial memorandum with regard to clauses 8 and 12 has been tabled.
109. The Committee Clerk: The first item is a rewording of the parts of the explanatory and financial memorandum that refer to clauses 8 and 12, which members had previously drawn attention to, where it mentions “resources" and so on. I met the lead Bill official last week over this, and the Committee has been offered a rewording of those two parts by the Department. Members may want to have a look at those, take them away and consider them. Effectively they are eliminating any reference to “resources".
110. The LRA will be coming to the Committee on 10 November, but we got its paper in advance so that members could have a look at it. It does raise issues that have been flagged up before. It also supports having discretion to prioritise the caseload that it wants to deal with. That may be a way of the Department then being able to say that it can then lower the LRA’s resources. Obviously, that is a speculative feeling — there has been no statement of that from the Department or anything — but that is what the LRA has suggested could happen. That is contained in the briefing document, and it will come and discuss that with members on 10 November. We wanted to raise it at this point because it has been raised by members before.
111. Those papers are there if members want to take them away and consider them. We have the Law Centre in tomorrow; it has raised different, more abstract issues.
112. To continue with the bits of the Bill and —
113. The Chairperson: As members consider the additional information, they should also bear in mind that some of these measures might actually encourage greater efficiency and effectiveness, as well.
114. The Committee Clerk: The Department has said that essentially the clauses are there to give the LRA the discretion to be able to prioritise cases so that it will not be forced to deal with cases that it knows will not go anywhere or where no conciliation is possible. In the words of the Department, it is a measure for effectiveness and greater efficiency. Members need to balance out those two arguments from the Department and the LRA, and you will have a chance to hear them both on 10 November.
115. As for the Bill itself, as the Chairperson said, we had got as far as clause 10. If I proceed with clause —
116. Mrs McGill: The revised wording of the memorandum — as first glance, I have some difficulty with it. We will be coming back to this: “The intention of the amendment is to relieve the LRA of the obligation to offer conciliation".
117. That does not sit easily with me. It may do with the LRA, but —
118. The Committee Clerk: That is the wording that the Department has offered. I have also come up with my own wording, which I can also offer if it is timely and if members like. It is simpler:
“The intention of the amendment is to enable the LRA to prioritise its cases".
If you stop at the word “cases" and take out:
“where demand for conciliation exceeds resources available",
it will then read:
“The intention of the amendment is to enable the LRA to priorities cases and to relieve the LRA of the obligation to offer conciliation".
That still leaves in the word “relieve", which Mrs McGill has flagged up, but it is a simple possible change. It just eliminates an extra sense without putting anything more in, but it does leave that word “relieve".
119. The Chairperson: It was my understanding that it was to allow the LRA, where there were cases that were going to go to tribunal or to court, that there was not a time-wasting aspect to it. If Mrs McGill wants to bring forward a wording that she might be happy with at a future meeting, that might be useful.
120. Mrs McGill: I think that it is important that it be a Committee decision, in the final analysis.
121. The Chairperson: Oh yes, but if you thought that there is something that would assist —
122. Mrs McGill: I just want to make the point at this initial stage, but thank you.
123. The Chairperson: If any member wants to bring forward a suggested wording, it may well be adopted by the Committee.
124. The Committee Clerk: The Department has shown itself more than happy to look at what alternatives the Committee wants to bring forward, so there should not be any kind of problem.
125. Mrs McGill: We will hear the views of the LRA —
126. The Chairperson: And others.
127. Mrs McGill: And others.
128. The Chairperson: We will indeed. OK, members, we will move to the other clauses. I ask members to stay so that we can get this bit of business done. It will be a couple of minutes.
129. The Committee Clerk: There are only a couple of bits left.
130. Clause 11 covers the powers of the Fair Employment Tribunal in relation to matters within the jurisdiction of industrial tribunals. Members are aware that the Fair Employment Tribunal currently has the power to hear, alongside the fair employment aspect of a complaint, additional aspects of the complaint relating to other forms of alleged unlawful discrimination and unfair dismissal. Any other aspects of the complaint, such as a claim for unpaid wages or breach of contract, must be heard and determined as part of a separate industrial tribunal. It is one case, but if there are these additional elements they have to be heard separately, in an industrial tribunal away from the Fair Employment Tribunal.
131. Since all aspects of the claim often arise out of the same original set of facts, this duplication of effort is considered to be administratively wasteful and an unnecessary burden on all of the parties involved. Clause 11 aims to amend existing legislation to remove that anomaly. It means that all aspects of the case may be heard in one go at the Fair Employment Tribunal at the same proceeding, so there is no need to split it up and have two different cases before two different tribunals.
132. The Chairperson: That should make it easier for claimants.
133. The Committee Clerk: It is a slimming-down, administrative-burden-removal exercise.
134. We skip now to clause 15. Clauses 12 to 14 were dealt with previously when we dealt with earlier clauses where there was a tie-up. Clause 15 works with schedule 3. This is what we can effectively describe as the new element of policy being injected into the Bill. This time off to train or study was not an issue that the Committee originally took evidence on when it did the pre-legislative phase of this Bill. It is a new thing that has been brought to the Bill that the Committee will be thinking about during Committee Stage rather than having thought about previously.
135. The provisions introduce a power that will allow for the subsequent introduction of a new right for a qualifying employee who has had basically half a year’s service — 26 weeks — to make a formal request to the employer for time away from core duties to undertake study or training. The application for this study or training must be to improve the employee’s effectiveness at work and the effectiveness of the employer’s business, so there are criteria within which these applications will have to work.
136. The Chairperson: Mutual.
137. The Committee Clerk: It has to be mutually beneficial. Employers will be obliged to give serious consideration to such a request, and can turn it down only on the basis of one of a specified list of business reasons, comparable to a list that is already in place in respect of the right to request flexible working, which, members will be aware, is in separate legislation. The permissible grounds for refusal are listed as schedule 3, and they will be inserted after article 95 of the Employment Rights (Northern Ireland) Order 1996.
138. The very final thing that we look at is the list of delegated powers. I do not propose to go through them in detail, because it is one of those aspects of the Bill that are extremely technical. However, I will give a broad overview of what delegated powers are for. Essentially, delegated powers are put into other legislation by this Bill to allow the Assembly to have elements of control over future legislation. What we do with the delegated powers is forward them to the Examiner of Statutory Rules, who looks at all the statutory rules for us — that is a protocol that the Committees enter into at the beginning of a mandate. The Examiner of Statutory Rules looks at these to see if they give an appropriate level of delegated power. The Examiner of Statutory Rules has looked at these, and at the parent legislation and so on that they will affect, and he believes these all to be an appropriate level of power and control for the Assembly.
139. Unusually for a Bill that is not a particularly big Bill, there are a lot of delegated powers. If members recall, the last time we did the informal clause-by-clause, I flagged up the fact that this Bill slightly modifies a very large amount of existing primary legislation. That is why there are so many delegated powers.
140. That takes us through to clause 16 and schedule 4, the repeals. That is simply a list of parts of legislation that have to be taken out of other primary legislation because of this Bill. Remember that we talked before about removing the old statutory grievance procedure, and so on. This list simply puts in one place all the bits of legislation that must be repealed.
141. Clause 17 is the commencement clause. All it really does is provide for the commencement of the provisions of the Bill on dates that are specified in Orders made by the Department. That is effectively when things will begin and when everything becomes law.
142. That pretty much takes us through, Chairperson. We have the Law Centre coming tomorrow, and we have received a paper. Next week we have the LRA, as I said before, and the Department immediately after that. It will be giving its views on the same clauses that have been flagged up to us.
143. The Chairperson: Well, members, that was only the informal scrutiny. We will be having formal scrutiny, so if there are concerns that members wish to raise —
144. The Committee Clerk: Previously, I used the phrase “it is not the river of no return". Nothing has been decided.
145. Mr Bell: Nothing is agreed until everything is agreed.
146. The Chairperson: That is correct. The devil is in the detail.
Members present for all or part of the proceedings:
Mrs Dolores Kelly (Chairperson)
Mr Jonathan Bell (Deputy Chairperson)
Mr Sydney Anderson
Rev Dr Robert Coulter
Mr Chris Lyttle
Mr David McClarty
Mrs Claire McGill
Mr Pat Ramsey
Ms Sue Ramsey
Witnesses:
Ms Liz Griffith |
Law Centre (NI) |
147. The Chairperson (Mrs D Kelly): I welcome Liz Griffith, policy officer, Karen Mercer, employment adviser, and Daire Murphy, employment adviser. You are all very welcome. Thank you very much for your attendance. The usual format is that witnesses take five to 10 minutes to present their briefing, and members are then given the opportunity to ask questions, to make comments or to seek clarification on any of the points raised.
148. Ms Liz Griffith (Law Centre (NI)): Good morning. Thank you very much for inviting the Law Centre to today’s meeting. I work in policy at the Law Centre. We hope that the Committee is by now well aware of the work that the Law Centre has been doing on this matter. I would like to provide you with the briefest of recaps.
149. The Law Centre has two employment advisers, Karen Mercer and Daire Murphy, who provide specialist advice and representation to claimants. We run a daily advice line and receive advice queries from across the voluntary sector and also from the Labour Relations Agency (LRA), solicitors and constituency offices.
150. We have been very pleased to be able to participate in the Department for Employment and Learning’s (DEL) review of dispute resolution, and we commend the Department for its openness and the approach that it has taken to engagement. We have briefed this Committee twice during the process, and we are pleased that it has maintained a close interest in what has been going on.
151. Underpinning our involvement in the review is our belief that the current tribunal system contains many major flaws, which means that justice is often inaccessible for claimants. We welcome the Employment (No.2) Bill, but we are anxious to stress that we see it as just one piece of a much bigger jigsaw. We hope that the Committee will play an important role in helping to move towards a systemic reform programme.
152. My colleague Karen Mercer will explain to members why we support a lot of what is in the Bill, after which Daire Murphy will turn to the bigger picture and ask whether the measures in the Bill really mesh together to form a fair and coherent system. Daire will also address the issues that we identified as critical in a briefing paper that I hope the Committee has seen.
153. Finally by way of my introduction, unfortunately, the economic backdrop continues to be sobering. Labour market figures for September showed an increase in the number of claimants receiving unemployment benefits. That reflects our experience at the Law Centre. We have seen an increase in demand for advice, and, specifically, advice relating to dismissals. We noted that a recent report by PricewaterhouseCoopers suggested that up to 36,000 jobs may be lost in Northern Ireland in the coming years. Daire will illustrate what those figures may mean in human terms. We highlight those figures not to be alarmist but to help emphasise that now is a timely moment for reform.
154. Ms Karen Mercer (Law Centre (NI)): Law Centre (NI) welcomes the Employment (No.2) Bill’s repeal of the statutory grievance procedure and its introduction of a code of practice. We congratulate the Committee on finding a Northern Ireland approach to that issue. The grievance procedure has been unduly burdensome and complex for claimants since its inception. It has been a time-consuming and legalistic process that has confused employers, employees and legal representatives. Our experience is that it has acted as a bar on access to justice for claimants.
155. The problems were that claimants were potentially ignorant of the procedure or baffled by its complexity, and that resulted in claims being made at an early stage, which had the impact of preventing claims — even meritorious ones — going forward. The grievance procedure led to formality and legal escalation at the start of the process, which lessened the opportunity for internal resolution. Therefore, we welcome the introduction of a code that is more accessible and less onerous for employers and employees. We hope that that, in turn, encourages greater use of less formal resolution options.
156. We are also pleased to see that the Bill retains the disciplinary and dismissal procedures. Those are established procedures with which employers are familiar. We believe that the three-step process is well-known by employers and is not particularly onerous for them. It offers clarity to employer and employee, in contrast to the grievance procedure, and is relatively simple and straightforward to operate. It assists employees by offering a guarantee of basic procedural fairness when a sanction such as dismissal is being considered. Given the serious consequences of dismissal, we think that it is a reasonable option to ensure that the decision to dismiss should not be taken lightly. The retention of those procedures means that employees in Northern Ireland will continue to enjoy the protection of that unequivocal, statutory right.
157. Our casework contains numerous examples of the importance of the statutory disciplinary and dismissal procedures. Recently, we argued for an employee for whom the dismissal procedure was not followed. That particular employee had been selected for redundancy despite his having the longest service history in the company and a wider range of skills than most other employees. No meeting was held in the company, which did not afford the employee the opportunity to input to the process. As the statutory dismissal procedure had not been followed and the employer had not shown the employee any selection criteria, it was automatically unfair. Had the procedure been followed, the employee would have had the opportunity to input to the process and to challenge his selection for redundancy, and, ultimately, he would not have been dismissed.
158. Cases such as that highlight the importance of the procedures. They are necessary and vital if any level of fairness is to be achieved. They allow the employee to input to a decision that will potentially have a serious consequence for them, to defend their position and, ultimately, to avoid a potential dismissal. Retention of those procedures avoids dismissals that are based on incomplete or incorrect facts, and it also reduces the possibility of unfair dismissal claims against employers.
159. We also welcome the change to the enforcement of sums payable. We believe that the removal of the requirement to seek a County Court order will simplify the process. Currently, the process is lengthy and costly for claimants. It places the burden on the claimants, which, in turn, effectively erodes confidence in the system. By the time that a claimant reaches the end of the tribunal process and is faced with having to pursue their award, a lot of claimants are evidently put off by that process. Therefore, we welcome the simplification of the process, which will put claimants in a more favourable position. Hopefully, offering a more realistic method of enforcing awards will also have the effect of deterring non-compliance in the first place, if it is regarded as a more effective method of enforcement.
160. We also welcome the right to request time to train. That will allow qualified employees the time to study or to train where it will improve performance. It will also assist employers and employees to work together to address skills shortages and to improve skills within the workplace.
161. Mr Daire Murphy (Law Centre (NI)): The consultation that the Department carried out and the response to it were very wide-ranging. As a result, the Bill addresses only a fraction of the outcome of that process. There is a lot of work to be done by the Committee, the Department and interested stakeholders to put flesh on the bones of the remainder of the proposals. We consider that a number of the measures proposed by the Department are in themselves very positive, but we remain concerned that they do not necessarily fit together in such a way as to provide a strategic reform that ensures a fair and coherent system.
162. For instance, a lot of emphasis has been placed on the promotion of alternative dispute resolution (ADR) techniques, such as mediation. We see that as a positive thing, but the Law Centre is very doubtful that that will be an effective panacea in itself for all the ills in the tribunal system. It is far from certain that employers will see a major interest for themselves in engaging in early ADR when the realities of the tribunal system make it so hard for employees to take their cases the whole way through and to win. It is not practical or desirable to make ADR, mediation, and so forth compulsory, but anyone who has experience of employers’ failure to engage with unrepresented claimants in the existing ADR system, which is conciliation, would not necessarily be too confident that that is suddenly going to change by itself.
163. Conciliation operates against a backdrop of an industrial tribunal system in which the deck is very much stacked against the employee, who is most likely to have no professional advice and no representation and who is trying to do their best in an alien environment and is often floundering in that environment. The Law Centre has published a research paper on tribunal reform in conjunction with the University of Ulster and the University of Liverpool, the research for which was funded by the Nuffield Foundation. I understand that that paper was circulated to MLAs; if anyone would like further copies, we can provide them.
164. The legal academics who carried out the research interviewed a wide range of people involved in tribunal systems. One finding was a definite scepticism towards ADR from claimants who had been through the whole process. None of the claimants interviewed felt that the respondents in their cases had attempted to engage in ADR at an early stage. That included those who were in bilateral contact with an LRA conciliation officer. It was felt that the employers preferred to push claimants towards a hearing in the expectation that that would overwhelm them and force them to withdraw and settle for less.
165. Unfortunately, that very much reflects our day-to-day experience as advisers and the responses from a number of organisations. Responding employers are represented by lawyers, and, if the system works in their favour, the lawyers will play that system to maximum advantage. When stringing things out in that way, they are often doing their job well for their client, and it often works. However, against that sort of background, it is difficult to see why employers would suddenly develop an appetite for early ADR unless they were pushed in some way.
166. The other main plank of the Department’s proposals rests on opening up a simpler alternative to the tribunal for disputed cases. It proposes that the current Labour Relations Agency arbitration scheme be expanded to cover all employment law jurisdictions, providing a quicker, cheaper and less legalistic alternative to the tribunal. That sort of forum, where employees can go and present their case themselves and be on more of an equal footing, is what employee representatives have been crying out for for years, but we believe that there is, perhaps, a failure to tie the reform into a coherent system and that that, therefore, could undermine its potential. In the model that we have put forward to DEL, we have pushed for a system in which all appropriate cases would have to go through a simpler, informal, speedy hearing to ensure that the industrial tribunal did not remain as the default setting.
167. In DEL’s model, arbitration remains voluntary, and employers may not see any incentive to participate because, for one thing, they are confident that they can grind the claimant down through the tribunal system. However, we also have a concern, which we have expressed to the Department, that it is clear that employer representatives have strong reservations about an arbitration system with no right of appeal. Under that system, people would simply have to opt for it and to take the outcome. Potentially, that could lead to widespread employer refusal to engage with the system, and, perhaps, that should be looked at again.
168. The researchers who carried out the Nuffield Foundation research on our behalf spoke to one tribunal member, a tribunal judge who had also been an arbitrator in the existing LRA system. That person was quite scathing about what might come out of the consultation and stated that it:
“glosses over the fact that all this was tried before and it failed totally. We had a perfect scheme … it was a shirt sleeves environment. … Nobody wanted to use it. It died simply because of underuse."
That is a cautionary note. We believe that any new system has to be fitted into existing processes in a way that ensures that it too does not die in isolation. New reforms and proposals need to be scrutinised to see how they fit in, and incentives and penalties should be considered to get employers and employees to engage with and utilise those alternative systems. That may involve using pilot projects and keeping a close eye on the outcome of those projects.
169. The Department’s response also proposes reform for systems of provision of employment advice and information-giving with the establishment of an interagency forum and an information gateway to signpost people to the most appropriate resource. It recognises the distinction between providing information and providing professional or tailored advice, and we welcome that. There is a significant degree of consensus that the Labour Relations Agency cannot offer that sort of advice but can provide the information.
170. It is evident from calls that we have received that a claimant who needs to look elsewhere for tailored advice cannot necessarily receive that from the LRA. We regularly receive callers who are referred to us from the LRA information line, which demonstrates that the agency cannot tackle the problem on its own. In 2008, we received 225 advice calls that had been referred from the agency. So far in 2010, that number has more than doubled to 490. In the past month, advice queries that were referred from the LRA accounted for more than a third of our queries.
171. Against that background, it is somewhat disappointing that the Department does not intend to provide any additional resources to deliver the advice that is recognised in the paper as being needed. The rationale appears to be that increased uptake of ADR and the impact of the arbitration scheme will be such that it will reduce the need for advice and, indeed, representation. Frankly, we would be delighted if ADR managed to produce those dramatic results, but, for the reasons that we have outlined, we remain doubtful, and rather a lot of eggs appear to be placed in that basket.
172. There remains, in our experience, an acute need for the provision of a proper advice service for workers. Existing structures, including our organisation, are being overwhelmed by the surge in the need for employment advice. The problem with providing a signposting information gateway is that, if you are going to signpost someone somewhere, surely you have to ensure that there is something there when that person arrives. As I said, at the minute, we are being overwhelmed.
173. We are all aware of the effect that economic austerity measures will have here, and I am sure that Committee members are particularly conscious of it. Many more people will lose their jobs, will not be paid their wages and will lose their redundancy payments. Therefore, the number of people who are thrown into contact with the dispute resolution and employment tribunal system is set to rise dramatically. Those people will come from all parts of the country and from all sectors of society, and they will expect a fair and just system to deal with their problem. Therefore, it is more imperative than ever that all stakeholders concerned work to try to give them that. At the moment, such people are likely to feel that they are fighting an uphill and futile struggle without advice or representation, and they can end up feeling disillusioned and resentful. It appears that that could happen to any of us, which might make it easier for us to imagine how we would feel in that sort of situation.
174. We believe that reform of the system must involve a two-pronged approach. First, it must provide a more informal route for resolving disputes through the arbitration system and, crucially, ensure that it is used. Secondly, it must try to make the existing tribunal system fairer and more equal. The single biggest thing that can be done to make the tribunal system fairer, cheaper and more acceptable to the public is to increase the provision of advice and representation for deserving claims. Quite simply, it would level the playing field.
175. It hardly needs to be said that public expenditure is under enormous pressure, but a sound business case can be made that investment in advice and representation can save public money. That is borne out by our experience and by the findings of the Nuffield Foundation research; representation allows cases to settle and shortens hearings.
176. An empirical study, which looked at that issue in detail, was carried out by the central office of Citizens Advice in England in July 2010. We can furnish members with a copy of that study if they want one. It looked at the evidence of the cost benefit and economic value of advice and representation and attempted to quantify the value of that to the state. The study found that, for every £1 spent on employment advice, the state potentially saves £7·13. I am not sure where they got the 13p from.
177. As there is a strong business case for the provision of advice and representation, and it is in the interests of fairness and justice and meets an increasing public need, the issue should be looked at afresh and consideration given to the provision of more resources in that regard.
178. Ms Griffith: I should explain that Daire is a lawyer by trade.
179. We have raised a number of critical issues this morning, which we hope will help to inform the Committee’s approach in the coming months. We ask the Committee to keep the non-legislative proposals, in particular, under review, including the effectiveness of the interagency information and signposting service and the effectiveness of ADR, particularly the arbitration and the uptake of that. We encourage the Committee to have a look at the availability and adequacy of the current advice services.
180. Karen pointed out that there is a lot of common ground between all parties, which is positive. However, I reiterate our view that this is the start of a process to bring about a fairer and more coherent system.
181. The Chairperson: Thank you very much for your presentation. For some time, the Committee has believed that the legislation is a starting point, not the final destination. We are keen to tidy up the Bill as best we can, but to have the Department come back to us with more extensive legislation that will look at the needs of employers and employees. All of us have experience of representing constituents with employment difficulties for whom achieving a resolution was made so long, drawn out and difficult because there was no intention to settle that people just gave up. On a personal level, I am interested in the promotion of social justice and employment law. Trade unions fought too long and too hard to get us some sort of protection and rights for us to give them up too easily. However, there are lessons to be learnt about the problem of lengthy delays and processes that have not had the desired outcome.
182. Do members wish to speak or are we content to note the paper?
183. Mr P Ramsey: I welcome the witnesses and acknowledge the Law Centre’s contribution to the work of Assembly Members. I had two cases at the Derry office last week, not strictly related to employment law — they were more welfare and social security issues — and Danny Breslin was very helpful. We deal with issues across the board with which the Law Centre is more than helpful. At times, it is a lifeline for Assembly Members who are struggling with such matters.
184. We all deal with cases in which people are bewildered by the system and become so frustrated that they want to just pack it in because of the lack of access to precise and specific legal advice. So, there must be signposting, and more so in non-legislative areas. An increase in job losses is expected and with that comes concerns from people about why one person lost their job when someone else did not. I am interested in the resources that the Department currently gives to the Law Centre and others. We are looking at more effective and efficient ways of delivering services. Therefore, if the Law Centre is saying that a business case can be made for an investment that will ultimately save money, the Committee would be keen to hear about how it can assist that when it meets the Department.
185. I am also keen to know the level of advice service being delivered by the Law Centre in each constituency, so that we, at the coalface, know how many people in West Belfast, East Derry or Foyle are being helped. Will you get the Committee some of that information? It may help.
186. Mr D Murphy: If we are able, we would like to try to do that.
187. On the issue of saving money, the field researchers spoke to tribunal chairpersons and respondents’ representatives. Speaking anonymously to make it easier for them to give their true views, their consensus was that unrepresented claimants often did not properly identify what their legal claim was. They had a sense of grievance and that was put forward, but they did not frame it properly, and, when they did get to tribunal, they did not concentrate on the correct points. They ended up missing points, not putting their case effectively and, therefore, maybe not proving their case. All of that also took much more time than it would have taken had such a person been represented. The chairpersons and representatives felt that tribunals had to take much longer in such cases to try to guide and to compensate for the fact that the person was not represented.
188. Mr P Ramsey: That is also very demoralising for claimants.
189. Mr D Murphy: It begs the question: if a tribunal chairperson is spending so much time trying to guide the person, would it not be better to give them representation in the first place? That would expedite the whole process.
190. Ms S Ramsey: I join Pat in putting on record my thanks for the work that the Law Centre does, especially in the workplace with employment issues. Sometimes, it is hard to face employers in big companies.
191. I have three points. I do not know whether Liz was boasting or complaining that Daire is a solicitor.
192. Mr D Murphy: I am qualified as a barrister.
193. Mr Bell: It does not make you a bad person. [Laughter.]
194. Mr D Murphy: I think that she was trying to apologise for my long-windedness. [Laughter.]
195. Mr P Ramsey: We got the point. [Laughter.]
196. Ms S Ramsey: It is useful at Committee when the Department is here listening to what is being said. I am keen to know what the Department’s views are and whether it is willing to reach an accommodation on this piece of work.
197. Do you have a relationship with the Equality Commission, and where does it fit in on some of these issues?
198. Mr D Murphy: In respect of the Department, we have spoken to the Department throughout the process, and it has always been open and willing to engage at every stage. As far as the Equality Commission is concerned, our representation work does not include cases that involve pure discrimination issues. The rationale of our management is that the Equality Commission is already there to provide that.
199. Ms S Ramsey: The reason that I asked that is that you talked about the signpost gateway. When people are referred to you, do you refer them on to the Equality Commission if the case involves something that falls in its remit?
200. Mr D Murphy: If it is a pure discrimination issue, we often direct people to the Equality Commission as it is the statutory body that is tasked with the provision of advice and assistance in that area.
201. The Chairperson: I wish that someone would remind the Equality Commission of that some time.
202. No other members wish to speak. We have listened carefully to what you have said, and we are particularly taken by the fact that the proposals include no right to appeal. The Committee may give further consideration to that and put forward an amendment if the Department does not take on board your point of view. The LRA made a similar comment, and we will wait to see how our discussions go next week with the Department. Thank you all very much.
Members present for all or part of the proceedings:
Mrs Dolores Kelly (Chairperson)
Mr Jonathan Bell (Deputy Chairperson)
Mr Sydney Anderson
Mr Paul Butler
Rev Dr Robert Coulter
Mr Chris Lyttle
Mr David McClarty
Mrs Claire McGill
Mr Pat Ramsey
Mr Peter Weir
Witnesses:
Ms Penny Holloway |
Labour Relations Agency |
|
Mr Tom Evans |
Department for Employment and Learning |
203. The Chairperson (Mrs D Kelly): You are very welcome to the Committee meeting, and we look forward to hearing what you have to say. The normal format is that you should give us an overview of your briefing, which members have received in advance, for about five or 10 minutes, and then make yourselves available to take questions or offer any points of clarification raised by members. Departmental staff will also be in attendance, and they will follow your contribution. Thank you for coming along.
204. Mr Jim McCusker (Labour Relations Agency): Thank you very much. We are happy that you have given us the opportunity to speak to you this morning. I will say a few things by way of background to the Labour Relations Agency (LRA) and what we do, and then deal with some of the points arising from the review of dispute resolution.
205. As many of you know, the general duty of the agency as laid down in statute is to promote the improvement of employment relations. We do that in two ways: prevention and cure. On the prevention side, we run a helpline, which took over 30,000 calls last year, leading to 50,000 inquiries. We also run seminars and workshops that are very popular with microbusinesses, which seem to be very appreciative of the services that we provide.
206. On the cure side, we have the tribunal cases. Last year, there were 16,000 such cases, 9,000 of which were Civil Service equal pay and sex discrimination cases. Apart from those, the underlying figure was around 7,000 cases, which was an increase from the figure of around 5,000 from the previous year. Almost half of the cases are settled by conciliation. Another 40% are withdrawn during the conciliation process. In the last financial year, only 14% of cases went to tribunals. In that year, we also had around 40 arbitration cases of a non-statutory nature, which were mainly in the public sector, and around 27 collective disputes.
207. We welcome most of the aspects of the review, but we have five areas of concern, which we have detailed in the written submission. If you will forgive me, I will concentrate on those five areas. That does not necessarily mean that we are unhappy about the general outcome of the review; it just so happens that there are difficulties in those areas.
208. The first area of concern is around clauses 8 and 12. As members are probably aware, we currently have a duty to conciliate even if no claim has been lodged. However, a claim could be lodged on the basis of the alleged infringement of right, and the proposal in the Bill is to change that duty to conciliate to a power to conciliate. We have four reasons for that concern. First, we believe that it sends out the wrong signal; it is generally agreed that we want to promote more pre-claim conciliation, and that clause seems to reduce its importance. Secondly, there is a resource implication. If there is no statutory duty, the argument is that it does not necessarily figure very highly in taking account of the allocation of resources. The third reason is that the agency already has a degree of discretion in that our general duty to promote employment relations cannot be prejudiced by specific statutory responsibilities. That is a judgement of the board of the agency. The fourth area of concern is that the provision could easily be circumvented. If there was a situation pre-claim, and we were to refuse conciliation, the obvious thing to do, if the parties want conciliation, is to put in a claim, which would mean that we are back where we started.
209. Our second area of concern is that we think that there should be an appeal against statutory arbitration. Currently, statutory arbitration is limited to unfair dismissal and flexible working. We welcome the proposal to extend the jurisdiction for statutory arbitration to all jurisdictions but, under the present scheme if someone chooses the arbitration route they give up the right of appeal. Indications are that that is not something that people are prepared to do. For example, over the past four years, there were 1,300 cases that were eligible for the statutory arbitration route, which was chosen once, in 2006-07. We are concerned that the area of statutory arbitration may be expanded, but it could become a dead letter. In support of that, the Department’s public consultation document talked about drawing on the lessons of the Rights Commissioner system in the Irish Republic. One of the lessons we drew from that is that there is a right of appeal, and that makes the scheme more attractive.
210. The third area of concern is the primacy of alternative dispute resolution (ADR). We all agree that there is a need to take up alternative dispute resolution, but we are concerned that it should be actively encouraged. Our suggestion is that, at the stage at which a case comes before the tribunal for a case-management discussion immediately prior to a tribunal hearing, the tribunal should ask whether alternative dispute resolution has been used and, if not, why not.
211. The fourth area of concern is the question of confidentiality. That is essential if you are going to engage in mediation. There is currently a provision in the legislation that covers conciliation and gives protection to the staff of the agency who are engaged in conciliation. The two areas of concern are whether that term covers mediation, and more precisely, what in modern parlance is called relational mediation. It is a difficult concept. If, for example, the chief executive and the head of HR in a firm fall out, there is no dispute, so there is no statutory right at issue, but there could be an employment relations situation that needs to be attended to. That type of situation does not appear to be covered by the protection in the legislation. We are in ongoing discussions with the Department on that area at the moment.
212. The fifth area of concern, members will not be surprised to learn, is that of resources. The bulk of our resources are used on our helpline and our conciliation service. In the half-year to the end of September, our helpline was losing 30% of its calls because people did not get through. Fortunately, for September and October, we have been able to reduce that figure to about 15% or 16%, which is much better than our earlier performance. It is a very demand-intensive and popular service.
213. The other major area is the conciliation service, which is very labour intensive. We devote a lot of resources to it. The demand for that service is led by whatever happens in the economy at large. Recessions generally give rise to more complaints about rights. We are concerned about resource implications. To put that in context, our budget is about 0·5% of the Department’s budget and about half that of the Equality Commission. We would say that we are not a very expensive organisation.
214. I hope that those remarks are of help to the Committee. I forgot to introduce my colleagues, who are Bill Patterson, our chief executive, Gordon Parkes, a board member and Penny Holloway, who is our director of conciliation.
215. The Chairperson: Thank you very much. Jim, I want to pick up on the call handling problem; you said that you were losing 30% of calls. As a former member of the Policing Board, I am aware that the police had a similar problem. How many of the calls are repeat calls because of the failure to get through? What analysis have you carried out? Is it really a resource issue or is it about the types of call handling contracts or management systems that you have in place?
216. Mr McCusker: The short answer is that we do not know. The system that we have does not capture whether people have come back for a second time. All that we can say is that the rate of satisfaction with the helpline seems to be high. We do not receive an awful lot of complaints that people have to call five or six times to get through. We assume that a fair number of the 30% who do not get through do so the second time. It has been reduced to 15% or 16%. That may be as low as we are likely to get it.
217. Mr Bill Patterson (Labour Relations Agency): At the moment, we run the service from 9.00 am to 5.00 pm. We are looking at running the service from 8.00 am to 6.00 pm, with much more staff flexibility, using a shift pattern. We will see what happens with that, and whether people will call between 8.00 am and 9.00 am and between 5.00 pm and 6.00 pm. The Advisory, Conciliation and Arbitration Service (ACAS), our colleagues in Great Britain, introduced a helpline that was open on Saturday mornings, but they said that people did not call on Saturdays because it was not in the culture. We are looking to expand the service to between 8.00 am and 6.00 pm. We might even settle at 15% lost calls because, as Mr McCusker said, that might be the natural balance of things. We are trying to get that even lower and provide a more flexible service. We are looking to improve our technology to potentially capture the information that you were talking about.
218. The Chairperson: It may be useful to have that information. There are lessons to be learned elsewhere and it would do no harm to speak to people who have carried out that level of analysis and evaluation and have sought to make improvements. Peter Weir was a member of the Policing Board when I was a member, and we talked about the PSNI’s call handling service. That is an ongoing issue, but I know that the Policing Board had looked at some examples of good practice, and you might want to ask them for guidance on that issue.
219. I would certainly welcome a flexible approach, because people are not working from nine to five any more, and it is helpful for people to be able to get through in the evening. I would like to tease out the confidentiality aspect that you spoke about. I know that there is a confidentiality clause in the Bill to protect some people who are more at risk from stereotyping prejudice than other sections of our community — people from the gay and lesbian sector, for example.
220. Ms Penny Holloway (Labour Relations Agency): The issue for us is that the current legislation facilitates confidentiality for the process of conciliation so that, when employers or workers go to the tribunal, the work that was undertaken during the conciliation process is confidential and is not explained or put as evidence to the tribunal. That is really important, because it builds trust in the process. If people thought that what they were saying would be presented to a tribunal if they ended up there, they would probably not go through conciliation.
221. What we have been pressing for is that, if we are going to expand our other dispute-resolution services, for example, mediation, the board believes that that level of confidentiality should also apply to those other dispute-resolution processes. At the moment, the legislation just refers to conciliation, but that is not defined anywhere. We are currently engaged in discussions with the Departments and their solicitors to see how we can best ensure that the services covering dispute resolution, including mediation, fall within that confidentiality process.
222. The Chairperson: Thanks for that explanation. The understanding of the Committee is that this is the first bite of the cherry in relation to improving the legislation, and we hope that the Department will bring forward, sooner rather than later, further regulations and legislation to improve it. However, if you have any particular suggested amendments, clauses or guidance, you can send them to the Committee during its consideration of the Bill. If you forward them whenever they are available, we will be happy to have a look at them.
223. Ms Holloway: Thank you very much; we welcome that opportunity.
224. Mr P Ramsey: Good morning Jim; you are all very welcome. Your organisation does an incredible amount of work — 16,000 cases. You mentioned a figure of 14% of that — just over 2,000. Is that how many cases formally went to tribunal? Was that workload unusual because of the equal-pay claims? Was that a one-off during that transition period? We had a huge debate up here about equal pay. You are not going to suggest that we will have a continuation of those types of appeal during the incoming term?
225. Mr McCusker: It so happened that there were 16,000 cases in the last financial year, and 9,000 of those were in the Civil Service. There was an awful lot of work involved in working with the Civil Service to resolve and sign those cases off. What we are trying to get at is the long-term trend. If we take the 9,000 out, there were 7,000 cases, compared to 5,000 cases the year before. The trend seems to be upward. That is consistent with conventional wisdom that people lodge more cases during a recession.
226. Mr P Ramsey: I am concerned about the appeal mechanism and having due process. If other places have that in place, I will be interested in any amendments to the Bill on the appeal process. I want to ask a question about your resources. You talked about the resource implication for the organisation overall, and you also spoke about 0·5% of the Department’s budget. Will you outline to us what that is, how it is spent, where there are pressures on it, whether there has been an overspend and where it fits into your plans overall?
227. On the final page of your balance sheet, you talk about capital works of £125,000 for the building. Will you give us a wee bit of information about your budget and about whether there was overspend or underspend on that? Which areas of your work are under pressure?
228. Mr McCusker: The overall budget is just over £3 million. As I said, around 70% to 80% of that is spent on staff and staff-related expenditure, such as premises and so on. The element spent on non-staff expenditure is quite small. The pressures are really on the conciliation side, to which Penny referred. Conciliation is very labour intensive and mediation is even more so. Everybody says that we should have more pre-claim conciliation and more mediation, but both are very labour intensive. That is where the pressure is.
229. We have also had problems with our IT system. Our advisers have told us that it is clapped out, and the auditors have raised warning signals about that, and as have others. We are trying to spend a bit of money to bring it up to date, because it is in grave need of remedial action. In the past financial year, we have handed back about £200,000. That was largely because, in the present climate, we felt that we should do only minimal work on our premises even though we had planned to improve them. Nevertheless, we did not end up too badly in the past financial year.
230. Mr P Ramsey: Which heading did the £200,000 underspend come under?
231. Mr Patterson: The underspend was in accommodation. We ran a project that found that our present premises facilitated our services in around 1997 or so. We are way past that now. We need a greater degree of flexibility from our accommodation. We have added new accommodation to our suite. However, we needed to internally facilitate more and bigger rooms for workshops and so on, so we went ahead and did the spec for that. It took some time to get the estimate. It came through at the end of the day at £1 million, which was not on. The Department indicated that it would not be on for £500,000, never mind £1 million. We obviously kept money over to spend on accommodation, and we have progressed three small projects at around £18,000 each. However, that is all that we have done; we gave up the rest of the money. We carried money over, but the need for that did not materialise because we did not get approval to continue with the accommodation programme, as we had first envisaged.
232. Mr P Ramsey: Therefore, that end of things could not have been used to try to modernise your IT provision?
233. Mr Patterson: It is all about timing. It takes quite a period of time to generate a programme to change and to spend.
234. The Chairperson: I hope that it is not like e-PIC, which ran £12 million over budget. Do you have flexibility in your budget to move money around? That is what Mr Ramsey is getting at.
235. Mr McCusker: We have some flexibility. One of the problems with the IT system is that we would ideally like to integrate that with the tribunal system. However, there have been all sorts of complications. We are getting warning signals that we need to something urgently, so we think that we will have to go ahead and just create our own system. Hopefully, we can link that with the others at a later date.
236. Ms Holloway: We were looking towards ACAS, because it has been developing a system for about eight or nine years, and its system would integrate with the tribunal system. Unfortunately, that has run into an enormous number of problems. An added complication is the fact that the tribunal system is going to be moving into the Department of Justice.
237. Our system is quite critical. It was a bespoke system. Our suppliers cannot support it any more, and we have a critical need to move into a new system. We would like any new system to be flexible enough to be able to do some work with the tribunals system if the occasion arises in the future, but they are just not at the same place that we are at the moment in having a joint system. It is not a possibility in the near future, and our need is absolutely now.
238. Mr Bell: What did you consider to be the fault in the system prior to this legislation?
239. Mr McCusker: I think that we are all agreed that we should do more pre-claims and there has been an increasing trend in that. We would like to do more in mediation. The barrier to that is the question of confidentiality. We would also like to encourage more statutory arbitration, and the barrier to that is the lack of an appeal against an arbitrator’s award. Those are two of the main barriers in the present arrangements.
240. Mr Bell: Have you thought through any specific amendments to the legislation?
241. Mr McCusker: No. We are taking legal advice on the confidentiality aspect, as is the Department. There is a complicated question as to what precise form any amendments to the legislation should take. Our view is that there should be an appeal, and that it should be the Industrial Court. There are questions as to whether it is necessary to have legislation to provide for that. I think that it is possible for us to design an appeal mechanism, but I am not sure about the legislation covering the Industrial Court. That legislation is quite ancient; its origins are back in 1919. You would need to go back through that legislation. We have not formulated any amendments, and we have been in discussion with the Department on the issue.
242. Mrs McGill: You are all welcome. Can you take me through the reasons why you want clauses 8 and 12 removed? You started your presentation with that, and I heard what you said, but I just want you to take me through it again. I have the Bill in front of me.
243. Mr McCusker: There are really four reasons. First, we think it sends the wrong signal. We are all agreed that we should encourage more pre-claim conciliation and yet, in the pre-claim area, the Bill removes a duty to conciliate and replaces it with a power to conciliate. The second reason is the resource implication. If we are arguing about resources, there is an implication that, perhaps not the Department of Employment and Learning but possibly the Department of Finance and Personnel might say that if something is not a duty, it is not important to resource it. The third area was the fact that we already have some discretion. The legislation states that our general duty is to promote the improvement of employment relations. It goes on to list specific statutory duties, but says that they cannot prejudice the generality of the general duty. There is some discretion there already. The fourth point is, as I said, that it can be circumvented. If we refuse conciliation and it is a statutory right that is at issue, a party can lodge a claim, and then we are back where we started in the duty area again.
244. Mrs McGill: Are you saying that if clauses 8 and 12 were to remain in the legislation as currently drafted that the Labour Relations Agency would need more resourcing?
245. Mr McCusker: Our view is that clauses 8 and 12 are, to some extent, unnecessary. We do not think that there is a need to change the existing legislation. I think it will also help us in arguing our corner about resources if it remained a duty to conciliate prior to claims being lodged.
246. Mrs McGill: Perhaps I do not understand. Let me quote this from your paper:
“The agency is strongly of the view that that Clauses 8 and 12 significantly reduce the grounds on which resources could be secured to effectively deal with the DEL Policy Proposals on promoting pre-claim conciliation."
247. At the minute, do you have enough resourcing to deal with what you have to deal with, or do you have to refer fairly regularly to, for example, the Law Centre and other agencies? Is that the case?
248. The Chairperson: We have some difficulty understanding this point. Bearing in mind that you have underspent by over £200,000, and there is flexibility within your budget management to move money around, I for one am struggling with the argument that you are under-resourced, as I am sure are other members.
249. Mr McCusker: The £200,000 was earmarked for a purpose that did not materialise, and we could not spend it on the IT system because we were not at the stage in the development of the specifications where we could spend it. There was a time mismatch. As for the resource implications in clauses 8 and 12, pre-claim conciliation is very resource intensive. We are coping at the moment, and we think that if it is made discretionary, some people in certain areas of government will say that we do not need to be resourced to deal with a discretionary issue. I think we should all be agreed that we need more pre-claim conciliation, and we need to be resourced to do that.
250. The Chairperson: Will you perhaps answer the query raised by Mrs McGill about referrals to other agencies such as the Law Centre and so on?
251. Mr Patterson: The agency does not have the flexibility to vire money from its general budget, if you can call it that, to its staffing budget. That is not allowed under our financial memorandum. We have to have approval from DEL and DFP to make any adjustment to our staffing establishment and budget. At the moment, the overall budget is £3·74 million, of which £2·2 million is for staffing. We do not have the flexibility to transfer that £200,000 into staffing, and in any case, staffing is a long-term commitment.
252. Secondly, we have not made any reference to the Law Society or any other source whatsoever to facilitate the work that we have. The point about the pre-claim piece is that DEL and the LRA have yet to start seriously promoting pre-claim. We are not in a position to sit here now and say that we will get 10 extra cases or 1,000 extra cases, but six months or 12 months down the line, if the legislation remains as it is, the agency will argue that it is our duty to deal with the increase in those cases. We cannot simply set some aside and deal with them later; we have to address them there and then. That is why we are saying that the change from a duty to a power dilutes the weight of our argument for additional resources for individual conciliation.
253. The Chairperson: Paul is waiting now, so —
254. Mrs McGill: I think there are a number of issues that need further exploration.
255. The Chairperson: We will be meeting officials after this evidence session.
256. Mrs McGill: I just want to make the point specifically about resourcing and the climate that we are in, and will be in, about the need for all of this. I will not go into the business of the explanatory and financial memorandum (EFM) and how the wording of that prompted me to ask about resourcing in the first instance. However, the Department has re-worded the explanatory and financial memorandum; can we ask about that?
257. The Chairperson: I am conscious that time is rolling on, but we can send a copy of the wording to the LRA after the Committee meeting.
258. Mrs McGill: Given that representatives of the LRA are here, can we share it with them now?
259. The Chairperson: I do not see why we cannot share it with them now, but time is moving on very quickly. This session was to take around half an hour; departmental officials are waiting and some members have other meetings to go to. That is the difficulty. We can share it with you, but we may not want you to comment right away. The best approach is for you to get back to us.
260. The Committee Clerk: I flagged up to the LRA the fact that the financial and explanatory memorandum needed to be changed and modified and that members would be seeking to agree that. I have not received any alternative wording; that is the wording that members have effectively agreed to this morning.
261. The Chairperson: No doubt they can come back to us. We will move on to Paul Butler in the meantime, because I know that he has another meeting to get to.
262. Mr Butler: Thank you for your presentation. I know there are some amendments; you have probably only got them in front of you. In relation to clauses 8 and 10, I am trying to quantify the resources issue, because I am not quite sure. You mentioned a figure of £3.74 million — is that your overall budget? It seems to be about resource implications — [Interruption.]
263. Mr Bell: Just ignore the dentist next door.
264. Mr Butler: Do you have figures for what the resources and the implications of removing clauses 8 and 12 would be?
265. Mr McCusker: Our case on clauses 8 and 12 is not just a question of resources. First, it is about what signal we are sending out to people about their claim. Then there is the question of whether they are necessary. We do not think that the existing legislation needs to be amended in that respect to facilitate more pre-claim conciliation. The difficulty is that, if we are going to have more pre-claim conciliation, how and where do we promote it? There is a resource implication of that, which we would have to discuss with the Department.
266. Mr Butler: What would be the difference from now? That is what I am trying to get at. If the legislation does not change, I take it that you are saying that there is a resource implication. There is a resource implication for the budgets of all organisations.
267. Ms Holloway: It might be helpful if I talk about how ACAS dealt with it, because it was a change that was made in ACAS. If there is a duty to conciliate, we absolutely must conciliate. If that duty is changed to a power, you have a choice as to whether to conciliate or not, depending on your resources.
268. The Chairperson: To get this clear, it does not only depend on your resources. My understanding is that some cases were never going to be conciliated, and it allows them to move more swiftly up the line. That is my interpretation.
269. Ms Holloway: Pre-claim conciliation tries to target those disputants who have not yet made a claim, when the dispute is at a much earlier stage. We identify callers to the helpline and ask whether they are interested in pre-claim conciliation. They have not got to the point of considering a formal grievance or going to tribunal. It is picking up the dispute at a much earlier stage. ACAS has found that the helpline has increased their referrals for pre-claim conciliation. To deal with the change from a duty to a power, ACAS has identified a priority list, depending on its resource and whether there is an increase or not. ACAS has seen an increase in pre-conciliation claims, and if it does not have the resource it has a list of priorities, so perhaps it will go for discrimination claims or high-value claims first of all.
270. Pre-claim conciliation disputes are different to those where the claims have gone in. Once a claim has gone in, there is of course a duty to conciliate, but the pre-claim conciliations try to target those individuals before they reach the point of putting in a claim. It could be a different market. We also do it for redundancies, for example and, in relation to the Civil Service equal-pay claims, we undertook that service for those who were going to benefit from the settlement but had not actually made claims to the tribunal.
271. The Chairperson: Are you happy enough, Paul?
272. Mr Butler: Yes. We will hear what the Department says later.
273. The Chairperson: Is it fair to say that there is currently no business case for the pre-conciliation claimant requiring more resources from the LRA?
274. Mr Patterson: The point that was made about duty and power is not about practical resources at this time. It is about the position of the agency and the strength of the argument about whether there should be an increase in pre-claims. We hope that there will be an increase once we start promoting them. It is at that time when, if we have only a power to conciliate, DFP and DEL will say that no additional resources will be made available because we are not required to have them. We will be told to prioritise and use other resources for that purpose. If we use those other resources, our small business support side will be hit, which would concern us.
275. The Chairperson: It is understandable that there would be speculation at this stage. However, it would be fair to say that for either Department to pick up costs elsewhere in the system would be penny wise and pound foolish.
276. Mr S Anderson: Thank you for your presentation. You mentioned small businesses. Are enough resources going into making microbusinesses aware of the legislation in order to prevent proceedings from taking place? I know that you carry out workshops, but I do not know whether you have a database that would indicate how many small businesses know about the legislation. Perhaps that is where a lot of the difficulties arise and create problems for employees. That is when the game gets bigger.
277. The Chairperson: Speak with your trade union hat on, Jim.
278. Mr S Anderson: Do you think that you are putting enough resources into touching base with, for example, owners of small shops who employ only two or three people, and who can get into difficulty, especially now, during an economic downturn, when they might have to close the business and say to their employees that they are not required from today. The employee has a lot of rights, and perhaps the employer does not know what those rights are. Are you touching base with those employers so that they know what they have to adhere to?
279. Mr McCusker: When it comes to the question of resources we will all say that we need more. I would like to do more. The first point that I would make is that we connect with small and microbusinesses through our seminars and workshops. Something like 80% or 90% of the people that attend those seminars are from small businesses. The anecdotal evidence of our helpline shows that about 60% of our calls are from employees and about 40% are from employers. The anecdotal evidence shows that most of those employers are owners of small businesses, and they are benefiting from that service.
280. On the conciliation side, the degree and intensity of involvement of a small employer with the agency is much higher than that of larger companies. In that way, we are assisting small businesses. We could always do more. It is a question of balancing resources among the various activities of the agency. We all agree that prevention is better than cure, but prevention is not there in the statutory duties. That is where we have to balance our resources. We think that we are not too far from the mark in how we try to divide up the resources.
281. Mr Patterson: At the macro level, government is attempting to expand the private sector. One of the issues in the private sector is the employment of additional people in expanding firms, of bringing in people and taking the fear out of employment. That is what our advisory services do; in part, they take the fear out of employing that extra one person. There are 60,000 to 80,000 microfirms in Northern Ireland. It is about all of them taking on the burden of employing one extra person.
282. In the 1970s, as Mr McCusker said, there were four individual rights jurisdictions. There are now anything up to 70. A small firm starting in the middle of 1970 had only four cases of unfair dismissal or discrimination. There are now up to 70.
283. That is the work that the advisory services do. They deal with small firms, first, to help them to understand what the legislation is all about, because it is very complicated, and, secondly, to hold their hand. The issue with resourcing that side of things is that every small firm wants us do that for them on site. However, we cannot provide that quality of service.
284. The underlying theme is that the more face-to-face work we do with small firms the better, but we cannot do that. We are providing workshops and are trying to pull those firms in. As the Chairperson said, the resource side of advisory services is infinite; it is supply-led rather than demand-led. Penny’s side is demand-led, and the provider’s side is supply-led. We can provide more workshops and engage with more small firms. However, that all depends on the weight that is placed on expanding the private sector in Northern Ireland.
285. The Chairperson: If you have any further information that you wish to give to the Committee in its consideration of the Bill, we would be happy to receive that. As Claire McGill suggested, we also ask you to provide us with your comments on the latest wording. Thanks very much for your presentation.
286. We will now hear from departmental officials June Ingram, Tom Evans and Alan Scott, who have also provided a briefing paper. I am sure that they have listened very intently to what others have said and may seek to address some of the concerns raised by the LRA and members. The briefing paper is contained in members’ packs, and some additional information will be handed out. It is good to see a familiar face, Tom.
287. Ms June Ingram (Department for Employment and Learning): I will make only a few brief opening remarks, as I know that the Committee is pushed for time. We welcome the opportunity to provide further evidence as the Committee gives detailed consideration to the Bill’s provisions. We very much appreciate the significant input that it has made to this substantial policy review.
288. The Bill is part of a wide-ranging package of measures emerging from the review. We are committed to taking forward the other very important non-legislative projects that focus on prevention and early resolution of disputes. The legislation is a fundamental part of a larger programme of change, and the benefits in the round will be seen when there is an improvement in the quality of employment relations across Northern Ireland, using alternative dispute resolution as the norm.
289. As regards the evidence from other parties, we noted with interest the views of the Law Centre during its recent presentation to the Committee about there being a need to mesh together coherently the various strands of the policy proposals that we are taking forward. We are supportive of that view, and we have taken some steps to ensure that the implementation strategies are informed by the insights of practitioners and stakeholders. In that vein, the Committee is aware of the significant role of our consultation steering group in ensuring that the review canvassed the opinions of all stakeholders. We have just reconstituted that consultation steering group as an implementation advisory group to ensure a joined-up approach to the various implementation projects. The purpose of our attendance today is to respond to the issues raised in evidence by the LRA and the Law Centre. We hope that the briefing paper has been of some help. Tom will now outline our understanding of the issues that have been raised. At the end of the presentation, we will attempt to answer any queries.
290. The Chairperson: I remarked that this is very much the Department’s first bite at trying to provide clarification. Tom, can you confirm that there is an expectation that amendments or improvements will come forward at a later stage?
291. Mr Tom Evans (Department for Employment and Learning): Absolutely. We came to the previous session with the Law Centre, and we found it helpful to hear both evidence sessions. Obviously, we do not concur with everything that was said. However, I think that there has been a general warmth around the whole issue, which is quite complex. The Law Centre encouraged the Committee to take a continuing interest in the roll-out of this. This is about continual improvement rather than about switching the lights on and off.
292. Many of the improvements will be of a non-legislative nature because the practice is often more important than the structures and the rules. There is an implementation advisory group, which the LRA and the Department are key parts of, and we would be happy to keep the Committee apprised as this rolls out, because it will be an ongoing process.
293. The Chairperson: Thank you. Claire McGill has a question. Sorry Tom, you were going to give a presentation — you should not pause in this Committee.
294. Mr Evans: Sometimes, you like the chalice to be passed on. You could have said it was not required because members have read it.
295. The Chairperson: There are some speed readers here.
296. Mr Evans: We have prepared a detailed presentation. I will run through it at a rapid pace, but I thought it useful to present it in point form so that members can consider it at a later date. We have tried to deal with the issues raised by the Labour Relations Agency in its submission — although we had not heard their evidence until today — and the Law Centre. I will try and pick up on some of the points that Jim McCusker and Bill Patterson raised.
297. The first issue was the purpose of clauses 8 and 12. The agency has expressed some concerns and wants those clauses removed. The feedback from the review has shown the need to promote early resolution of disputes. We believe that providing discretion to the agency to carry out pre-claim conciliation is consistent with that. It mirrors the GB arrangement, as Penny Holloway said, whereby the duty was amended to be a power. That has led to a very successful pre-claim conciliation process, which has resulted in an increase in ACAS’s pre-claim conciliation business. We have talked to departmental officials, and the priority is to encourage more pre-claim conciliation to hopefully reduce some of the debris that happens in having to launch claims at a tribunal. The policy intent is to offer the LRA complete discretion as to how it operates its pre-claim services.
298. The review started and continued during a time when there was no recession. The whole focus of the review was about effectiveness and improving systems. In no way was it looking at driving efficiencies and savings. I think we can honestly say that that just was not the case. We see it as an enabling as opposed to a cost-reduction measure, and the Department expects that the LRA’s pre-claim work will increase. Year on year, the LRA’s pre-claim work has increased. I think it has had 1,500 cases in the past published year. We see that as a positive, and we want this to be supportive to that approach.
299. Moving to arbitration and the question of whether a wider appeals mechanism is required, the Department has not set its face against appeal just to be difficult about the process. The whole principle of arbitration is that it is a binding decision. When I talk about my review to people independent of this and bore them to death, I ask their views on appeals, and they say that arbitration produces binding decisions because people waive their rights. There is a fundamental principle that I think it is important to remember.
300. Arbitration is the most intensive form of alternative dispute resolution. It produces a decision. Sometimes the arbitrator may mediate, and that is great. People have talked about the Rights Commissioner Service. We were very keen that some of the practices of the Rights Commissioner be imported into an enhanced scheme. However, as the Rights Commissioner Service has an appeal, the reality is that it is not comparing like with like.
301. In our situation, the Labour Relations Agency offers an individual conciliation service and mediation, after which someone could go to arbitration. In the Republic of Ireland, someone would go directly to the Rights Commissioner Service. There needs to be some appeal. The access to the justice system, conciliation and mediation is there, but if someone then decides to go to arbitration as an alternative, they waive their rights. Arbitration has not been promoted.
302. I will not read it out, but I think the guidance from the LRA on its two schemes is worth a read, if the Committee staff will make it available. This is no criticism of the way it has been written; it is factual. It refers to inappropriate cases. The scheme excludes from its scope any kind of claims that are often related to other jurisdictions, so unless the issue is about an unfair dismissal or flexible working, any other part of it has to be considered by a tribunal system. In fact the guidance says that, because of time limits, people may want to go a tribunal first and then go for arbitration.
303. It is hugely complex, and I think the inherent weaknesses of the scheme have not been highlighted in the evidence that you have heard. That is a significant barrier to using arbitration. We recognise that there have been advocates for wider appeal. Employer organisations have advocated that, but we are concerned that they would not take on mediation unless there was an appeal, and maybe it is only a staging post. We are interested in a culture where alternative dispute resolution is a viable first option for parties.
304. There was a counter view from the independent advice sector, which was that some people have neither the financial or emotional strength to go to a tribunal, which is an adversarial environment, and that they did not trust the internal appeal mechanisms of their employers, even if they are good mechanisms. They were looking for somebody independent to hear the case and say that they were right, wrong, or partially right and partially wrong.
305. The point was made about the complexity of employment law. A tribunal setting is a complex environment. We had a concern about putting in an appeal. The Labour Relations Agency talked to the Industrial Court. None of the advocates of appeal to an employment tribunal mentioned that we could potentially add another layer to a complex system, and we were conscious of that. The Department is persuaded of the case for an enhanced scheme covering all discrimination and non-discrimination cases. Many employment disputes in Northern Ireland that escalate to a tribunal have a discrimination element. Some cynical people would say that people are using the legislation to get them into a tribunal, but we are proposing that all jurisdictions be accommodated in a single, enhanced arbitration scheme.
306. We are saying that we should fix what is broken, which we think are the inherent structural weaknesses of the scheme. The Department will be monitoring the performance and throughput of all parts of the system. If people suddenly come back to the table after two years and say that, even with the enhanced scheme, only a small number decide to go to arbitration, there is no doubt that the Department would have to look at that again.
307. In our submission we clarified what the confidentiality protections are under article 20 of the Industrial Tribunals (Northern Ireland) Order 1996. We have been working with the Labour Relations Agency on that and have been able to give it assurance that all of the techniques it uses — conciliation, mediation or arbitration, either by LRA staff or agents employed by the LRA — are protected under the existing legislation for those cases that have a jurisdictional nature and that fall under article 20. Therefore, in any case that can be taken to an industrial tribunal, the LRA is protected in all of the activities that it undertakes.
308. The LRA has identified issues around relational mediation. We checked with our colleagues in GB, and there is no protection in law for ACAS to carry out relational mediation, which is not seen as core business. There are probably a small number of cases each year. We believe that the whole focus of the review was to stem the flow of people who had a jurisdictional dispute going to a tribunal, and to try to resolve it early, because that reduces the cost of conflict. We have taken advice and have instructed the Office of the Legislative Counsel, which has expressed concerns about providing a universal, catch-all protection, which, in law, parliamentary draftsmen are wary of doing and Parliaments and Assemblies are wary of granting.
309. The Labour Relations Agency has come back to us again about that issue, and we will go back to it. However, we do not think that that is an issue. The Labour Relations Agency thinks that it will undermine confidence in ADR. However, nobody else has raised that issue. The reality is that we have talked to the tribunal chairs, and we understand that they treat all issues in a sensitive manner. Nevertheless, we will look at whether it is possible to get a viable form of words. I know that the Committee has offered to do that. It is not that we are against that, but if it is not legislatively possible, that is where we are at. We think that the main part of the work is covered fully by the confidentiality protections afforded under article 20.
310. That takes us to the issue of ADR. Everybody on the review is committed to ensuring that alternative dispute resolution happens as early as possible. The Law Centre and the LRA raised the point that there should be some sort of compulsory element to encourage parties in a dispute to take on ADR. We have also heard separate representations from employers about that. However, the view strongly put across during the wider consultation was that if ADR were made mandatory, it would become a hoop that some people would jump through to get to a tribunal. I think that the Department is more minded to get all of the stakeholders and everybody else together to promote ADR as an economically valid way of resolving disputes.
311. I point out that the tribunal chairs promote ADR in case management discussions. Those discussions now happen in all discrimination cases, which represent around 40% of our throughput. At appropriate times, tribunal chairs will ask parties whether they have thought about using the services of the Labour Relations Agency, which has duty officers on hand. We will certainly be encouraging all of the parties to promote ADR, even aggressively, because I think that that has value.
312. The Department believes that there needs to be a culture shift. It has a problem with the term “alternative dispute resolution" because “alternative" suggests that it is for only a few rather than for many. We therefore encourage the Committee to help us to promote dispute resolution as a mainstream activity and not as a peripheral second option; it should be the first option. In the current economic environment, employers, who people suggested had deep pockets, now realise that they cannot afford to do this and that there needs to be a better way of doing things.
313. The Law Centre said that it had concerns about whether the review had understood and communicated fully the difference between neutral assistance provided by information providers and the more bespoke, partisan advice and advocacy offered by organisations that represent individual employees or employers. However, the Department and the review do understand the difference.
314. Information providers play a huge role in signposting employees who have a problem in the workplace so that they can do the right thing and get their first step right. One of the key roles of the implementation advisory group will be to oversee over an inter-agency forum, which will hopefully develop simple structures and templates that all information providers will sign up to, so that if an employee told a provider that he or she had a problem in the workplace, the provider would say:
“Have you talked to your employer? Have you raised the issues? You should be thinking about those issues and about early resolution."
315. Providers who offer advocacy and support in individual cases perform a different role. That role is very much about the presenting the merits of an individual case to the best advantage. I know that the Law Centre does a hugely valuable job in that. Although that role will remain, we hope that the use of first-line advice will help people to get on the right road, through the promotion of ADR or dispute resolution prior to tribunal, so that they go back to their employer to try to resolve the dispute in the workplace. That might then reduce the burden on providers who give bespoke advice. That is our argument. As I say, that will be a challenge for the information forum.
316. In relation to the resources issue, you have the points in front of you. I do not want to labour those points, but I think that the Department, in everything it has done, has identified dispute resolution as a high priority. We can give an assurance to you that we are not looking to cut the agency’s pre-claim activity; in fact we want to increase that, because we think that there is an economic sense to the dispute resolution focus on prevention, area resolution and the general improvement of employment relations. We have spoken about helping the microemployers. There are issues that we have to explore about potential support for them and about embedding good practice in large private and public sector employers. That in itself will reduce the cost of employment conflict, which will ameliorate some of the issues that have been raised today.
317. The issue of legal aid have been consistently raised by the Law Centre; we recognise that, and understand why. When we sought views in the consultation there was a very divided opinion on legal aid. In fact, there were more people against it than for it. A review of the access to justice is currently being conducted, and the Department is giving evidence to that review. We have made available our feedback on the consultation, but we are also interested in looking at alternatives to the justice system, wider than employment disputes but also in family law, health litigation and a whole range of other civil matters. We hope that dispute resolution becomes a viable mechanism in those jurisdictions.
318. The next comprehensive spending review will be very challenging. I think that the budget review committee is still looking at it, so I can honestly say that I do not know what the outcome will be, but I think we are all going to have to be more innovative. I heard Bill and Jim talk about some of their problems; I think that there are innovative solutions that can be used, which do not cost and can help in the situation. We are happy to work with the agency in that regard.
319. Finally, in relation to wider implementation issues, we have mentioned the Bill, and there will be subordinate legislation, which we will obviously bring to the Committee. We are much more enthused by the non-legislative matters that impact on current practice. We believe that the Bill will produce a package of bespoke measures, and we appreciate the Committee’s role in that. There is a significant role for the implementation advisory steering group and, if the Committee wants it, we would be happy for it to have a continuing role.
320. The Chairperson: Thank you very much, Tom. I will make my remarks very short, and ask Claire McGill to give way to Paul Butler, because he has to go to another meeting.
321. Mr Butler: Thank you very much for your presentation. I asked a question about resources of the LRA, which mentioned it several times in its written submission. The LRA has suggested that clauses 8 and 12 be removed. I take on board that you have some proposed amendments, but the agency is strongly of the view that clauses 8 and 12 will significantly reduce the grounds on which resources can be secured to effectively deal with DEL policies. There are obviously resource implications to clauses 8 and 12. You have mentioned the comprehensive spending review, and your notes mention a 17% increase in the LRA’s budget, and the possibility of a reduction in that figure.
322. I am trying to get my head around the resource issue. I take on board what you have said — that it mirrors matters in Britain in relation to ACAS — but the LRA seems to have a different view on it. There seems to be a resource issue, and I am trying to get to the nub of it.
323. Mr Evans: The LRA has raised it as a resource issue; we have never done so in the review, and we strongly refute the contention that it is about reducing resources. It is absolutely not; it is about giving greater flexibility, increasing the agency’s pre-claim activities. It is a priority of the Department that there should be more resolution of disputes before they get to a tribunal, because there are huge implications for the economy. It is not about a resource but about increasing the agency’s pre-claim conciliation, because we think that is an absolute priority.
324. Mr Butler: Taking on board what it has said, and from what I can see, the LRA wants clauses 8 and 12 removed. We need some dispute resolution on that. However, it has not quite said that that is going to happen.
325. Mr Evans: Under the current arrangements, the review demonstrated that when people ring up and ask for pre-claim help, it is available. We are asking the LRA to target and encourage people to think about early resolution as opposed to going to a tribunal system, as has happened in GB. I understand that the LRA and others are nervous about resources, but this has not been a cost-reduction issue.
326. Mr Butler: The LRA’s paper states that:
“Resourcing for the Agency will remain a matter of strategic importance."
327. As I said, all organisations are concerned about this climate in which there will be cuts. The LRA is concerned about what it can deliver through the computer system and its helpline.
328. Ms Ingram: As the LRA representatives said, the issue is looking to the future: if there is a duty to conciliate rather than a power, that changes the context. I think that the Chairperson said that if we are looking at short term versus long term, we do not want to save pennies and lose pounds in the long run and, pre-claim, early resolution as opposed to going to tribunal has to remain a priority. That is what we are looking at. The change from a duty to a power enables greater flexibility and discretion as opposed to a blanket duty. The issue is about looking at where the most effective use of resources is, and I think that has to be a good thing.
329. Mrs McGill: Paul has raised the points that I was going to raise.
330. Mr Butler: Sorry about that, Claire.
331. Mrs McGill: Part of the difficulty that we have is in resources. The climate that we are in and that we will be going into, as I said earlier, makes it more difficult for those people who need issues such as resourcing the LRA and other agencies to be resolved.
332. Tom, you said in response to my party colleague Paul that this was not about resources, but this is where a lot of the discussion started around the explanatory and financial memorandum. I know that you have looked at the wording, but I will quote from it:
“where demand for conciliation exceeds resources available".
333. That was the original wording in the memorandum so, to some extent, the Department introduced the word “resources" to the discussion. It makes sense to look at resourcing if there will be a bigger demand for services at the pre-claim conciliation stage, and we assume that there will be an increase. That could be done through a rejig of existing resources to target a productive result in a more effective way or to see whether there is a need for further resourcing. However, that is where the word “resourcing" took legs.
334. You have done good work on the rewording, but the LRA’s request remains that clauses 8 and 12 be removed. I think that it was the Chairperson who said that they were unnecessary, but clearly we will look at that. You have made your case.
335. Mr Evans: We have not had feedback from any other stakeholders who have concerns about it. I understand that the issue of resourcing is of particular concern to the LRA, but it is with any other organisation, including our Department. As for the recession action plan, the Department has responded proactively over the past couple of years through a range of measures to deal with the fallout of the recession by redirecting staff, and it will continue to do so. There is always the issue of wider resource availability, but pre-claim is a very high priority for the Department.
336. The Chairperson: It would be true to say that as far as resources are concerned at this stage, it would be like gazing into a crystal ball. As I said earlier, it is in everyone’s interest to resolve disputes at the earliest opportunity. Will you comment on the LRA’s inability to have a flexible approach? There is a £200,000 underspend, and there was a need to deal with conciliation with respect to making short-term contracts with some staff in that regard. Would the Department look favourably on that if a business case were put to it? I think that it is true to say that no business case had been put to the Department in relation to that.
337. Mr Evans: The LRA is very important to us, and we want to work with it and help it to provide solutions. We need to be careful about being too intrusive, because the LRA has a management team and a board. We are very keen to work with the LRA and help it to be flexible and innovative. There are ways of bringing people into an employment setting, through flexible working and a range of options. With respect to the LRA’s physical resources, are there other opportunities that it could use? For instance, it cohabits with the tribunal system, and there may be other opportunities available to it. We are very happy to work in partnership with the LRA.
338. The Chairperson: My ears picked up a bit on that with respect to the infrastructure of the building. There are plenty of hotels and venues in the city, as well as places of employment, that would be quite happy to have the custom should it be necessary to book rooms for workshops.
339. Those are all of the Committee’s comments. The Committee will be moving to the formal clause-by-clause scrutiny of the Bill next week, and we will hear what individual Committee members bring to the table. Thank you very much indeed for your briefing and for your offer to work closely with the Committee during further consideration of the Bill.
Members present for all or part of the proceedings:
Mrs Dolores Kelly (Chairperson)
Mr Jonathan Bell (Deputy Chairperson)
Mr Sydney Anderson
Mrs Claire McGill
Mr Pat Ramsey
Ms Sue Ramsey
Mr Peter Weir
340. The Chairperson (Mrs D Kelly): We move to the formal clause-by-clause scrutiny of the Employment (No. 2) Bill. This item of business will be recorded for Hansard, so all electronic devices should be switched off. Members are not too good at hiding their mobile phones; I can see that they are all checking them.
341. It is planned that the Committee will complete its clause-by-clause scrutiny of all 18 clauses and four schedules, including the delegated powers that are attached to some of the clauses. The Committee is required to agree or otherwise to each Part of the Bill. The Bill’s purpose is to:
“Make provision about the procedures for the resolution of employment disputes and the procedures of industrial tribunals and the Fair Employment Tribunal; to make provision in relation to time off for study or training; and for connected purposes."
342. The Department undertook extensive consultation on the Bill, and the Committee undertook its own extensive evidence gathering on workplace dispute resolution prior to the Bill’s being drafted. Members received a memo on the Bill via e-mail on Monday. That memo lays out the purpose of the Bill. The Examiner of Statutory Rules provisionally indicated that the delegated powers in the Bill are appropriate and that a full report would be forthcoming. In fact, we now have that report. Last week, the Committee heard evidence on the Bill from the Law Centre and the Labour Relations Agency (LRA), as well as briefings from departmental officials.
343. The Committee Clerk: The Committee received a further response from the LRA. Last week, members heard the LRA state its position that clauses 8 and 12 should be struck out of the Bill. The LRA put forward its arguments on that, and the Department then put forward its counter arguments. The LRA still holds to its position of wanting those clauses removed from the Bill. It will be for members to decide whether that is appropriate. As I said, the LRA position has not varied since last week.
344. I will begin, and my approach will be to flag up the title of each clause and to describe the clause. The Chairperson will then ask whether there is agreement on the clause. If so, we have a form of wording that must be used for the record.
Clause 1 (Repeal of statutory grievance procedures)
345. The Committee Clerk: Clause 1 is linked to schedule 1. Members will recall that the repeal of statutory grievance procedures is essentially the bedrock of the Bill. The procedures were put out about five years ago, and they have been repealed in GB already. This issue is core to the rest of the Bill. Therefore, we are seeking to establish whether members agree to clause 1 and to schedule 1.
Question, That the Committee is content with the clause, put and agreed to.
Clause 1 agreed to.
Schedule 1 agreed to.
Clause 2 (Statutory dispute resolution procedures: effect on contracts of employment)
346. The Committee Clerk: We went through this clause previously. No issues on clause 2 were raised by any respondents or members during informal clause-by-clause scrutiny. The explanatory and financial memorandum (EFM) to the Bill states: “Clause 2 repeals Article 16 of the 2003 Order, which implies in every contract of employment a duty to observe the statutory dispute resolution procedures in circumstances specified by the Department in regulations."
347. The provision that will be repealed was never commenced, and there has been no demand for such a provision. Therefore, we seek members’ agreement on clause 2 on its own.
Question, That the Committee is content with the clause, put and agreed to.
Clause 2 agreed to.
Clause 3 (Statutory dispute resolution procedures: consequential adjustment of time limits)
348. The Committee Clerk: At the moment, there is provision for an automatic extension of three months in which a tribunal claim can be lodged where parties comply with the statutory dispute resolution procedures. Clause 3 repeals the relevant powers to allow that to happen.
349. Again, no issues were raised in connection with this clause when the Committee heard from stakeholder groups and when it looked at the matter informally and during its own consultation.
Question, That the Committee is content with the clause, put and agreed to.
Clause 3 agreed to.
Clause 4 (Non-compliance with statutory Codes of Practice)
350. The Committee Clerk: Clause 4 also relates to schedule 2. Again, we will have to return to the schedules separately. The clause will amend the Industrial Relations (Northern Ireland) Order 1992 to support a non-statutory approach to grievances, because the grievance procedure will be repealed by clause 1. The change will establish the context for a revised Labour Relations Agency code of practice, which will set good practice standards to which employers and employees will be expected to adhere. Failure to comply with the new code will enable a tribunal, if it considers it just and equitable, to increase or reduce a relevant award by up to 50%. Therefore, the clause will essentially allow a variance of reward where grievance procedures have not been complied with.
Question, That the Committee is content with the clause, put and agreed to.
Clause 4 agreed to.
Clause 5 (Determination of industrial tribunal proceedings without hearing)
351. The Committee Clerk: Clause 5 specifies that the determination of tribunal proceedings without a hearing will be permitted only when all parties to the proceedings consent in writing to that process, or if one of the parties presents no response whatsoever in the proceedings or does not contest the case. That means, effectively, that all the parties concerned have to register a view.
Question, That the Committee is content with the clause, put and agreed to.
Clause 5 agreed to.
Clause 6 (Restriction of publicity)
352. The Committee Clerk: Clause 6 deals with restriction of publicity.
353. Mr Weir: It may be difficult to get people to agree to that.
354. The Committee Clerk: Clause 6 enables industrial tribunals to restrict publicity in a wider range of circumstances than currently exists. At the moment, a restricted reporting order may be made in proceedings involving allegations of sexual misconduct. The clause extends that power to cover individuals for whom the disclosure of identifying matter would likely cause risk to either themselves or their property. It also covers situations in which the tribunal considers such an order to be in the interests of justice.
Question, That the Committee is content with the clause, put and agreed to.
Clause 6 agreed to.
Clause 7 (Enforcement of sums payable)
355. The Committee Clerk: Currently, when an industrial tribunal orders a party to pay an award but that party fails to do so, the party seeking enforcement through the courts must first register the matter with their County Court through the Enforcement of Judgments Office. The County Court will then issue an order for enforcement. The clause will make amendments that remove that intermediate step so that an individual can go straight to the order for enforcement without having to go through the County Court. It speeds up the entire process and makes it more simple administratively.
Question, That the Committee is content with the clause, put and agreed to.
Clause 7 agreed to.
Clause 8 (Conciliation before bringing of proceedings)
356. The Committee Clerk: I will deal with clauses 8 and 12 together, because those were the clauses on which issues arose. The Department has agreed to its suggestion to reword the EFM in the most pared down form. The LRA effectively opposed that rewording. Members heard the LRA’s arguments and the Department’s counter arguments.
357. There appeared to be two opposing viewpoints that were not being easily reconciled. That means that members will need to make a decision on where they want to go. In cases where parties to a dispute that could result in a tribunal claim seek assistance from the Labour Relations Agency, the agency has a duty to provide assistance, even if there is no prospect of any kind of conciliated settlement. Clause 8 will convert the LRA duty into a power, which allows the agency to target its resources more effectively so that it can prioritise cases. Although we have to deal with the clauses 8 and 12 separately, when combined, they will essentially ensure that that power applies to industrial tribunals and the fair employment tribunal.
358. Members heard the agency’s counter argument, which said that if it no longer had the absolute power or duty to provide assistance, the situation could somehow be used to run down or reduce its resources. The Department made considerable representations to say that that was not the case.
359. The EFM now reads in a very different way; it essentially reinforces the idea that it gives the LRA more power to prioritise cases as it wishes. The Department also said last week that there would be further consultation and examination of how that prioritising works in practice. Members will recall that the Department stressed that this is not a resource issue.
360. Although taken together, the Question on each has to be put separately.
361. The Chairperson: Are members content that the Question be put?
362. Mrs McGill: I have the correspondence from Bill Patterson in front of me. The penultimate paragraph of his e-mail states: “The offer of ‘complete discretion’ masks the underlying diminution of the strength of the Agency’s case in seeking additional resources given that the Agency’s duty to conciliate is reduced to a power."
363. The last time that we discussed this, I made the point that complete discretion was helpful. To some extent, I can see the LRA’s argument. However, according to the Committee Clerk, the Department —
364. The Committee Clerk: I gave my interpretation of what the Department said. I said that members would obviously recall what the Department said. However, members must use their own judgement. I am merely paraphrasing. I support neither the position of the LRA nor that of the Department. I am a completely neutral player.
365. Mr Bell: Where is the bowl of water? [Laughter.]
366. The Committee Clerk: If it is helpful, I will detail the options that are available to the Committee. They are: agreement to the clause; delay to reconsider the clause, although I must flag up that we have very little time left to get everything in before the end of the Committee Stage, even though that should not influence anyone; rejection of the clause; or the Committee can go to a division to seek agreement.
367. The Chairperson: We have discussed the matter over at least three weeks and have heard from all the relevant representatives. It is up to members to make their own judgement on whether their interpretation is what the Department gave an undertaking for or whether Mr Patterson’s comments are considered to have greater importance at this stage.
368. Mrs McGill: I am not sure whether the LRA did not respond in the first instance or whether it responded in its first submission but did not comment on the clauses or ask for them to be removed. Which is the case?
369. The Committee Clerk: The LRA highlighted the arguments. About three or four weeks ago, members received a subsequent paper that asked for the removal of clauses. I do not know the LRA’s thought process, but I think that it had discussions with the Department, and my assumption is that, because of what the Committee heard last week, they were not able to reach agreement.
370. Ms S Ramsey: In the scheme of things, the LRA is an arm’s length or non-departmental public body (NDPB). If an issue were being raised, it strikes me that the LRA and the departmental officials could have sat down and used their influence to come to an agreement on the matter.
371. I understand the points that everyone is making, but I am cynical about the fact that sometimes when a departmental official gives their interpretation of legislation, it does not mean the same as it would in the real world. I realise that we have been going over this issue for a number of weeks, but would it not be sensible to say to the Department and the LRA that they should sit down and talk about it over the next day or two to try to get a form of words that suits them both? If the LRA is saying one thing and the Department is saying another, where do we fit in? We are trying to get a balance in all this.
372. The Committee Clerk: There have been regular and long drawn-out discussions between the LRA and the Department. Long-serving members will recall that the Committee began looking at the issue about two years ago. Members heard last week that the LRA is concerned that its resources might be reduced, but the Department appeared to be saying that that was neither the case nor its thinking. It wants to see how it works, and it wants to build on it. The Department seemed to suggest that there would be subsequent legislation that would iron out any difficulties. The Committee should decide today whether it is content with the Bill as drafted and with moving it forward and seeing whether difficulties emerge. Alternatively, it can take the LRA view that it just expects difficulties or that it feels that it may be put under pressure with its resources and might be expecting cuts.
373. Ms S Ramsey: That is the difficulty that we are in. As this is legislation, there could be an agreement or there could be a nod and a wink. That is not necessarily what it is about. I understand people’s fear, but we need to try to get the issue clarified.
374. The Chairperson: The LRA heard clearly from the Department that that is not the intent, so it is working on supposition, not reality. The reality has been that money has been returned by the LRA [Inaudible.] We have to be sensible about public expenditure while not denying people their rights.
375. Ms S Ramsey: I agree with you, but I cannot understand why there has been an issue, considering that the LRA is an arm’s-length body. The matter should have been sorted before it got to the Committee.
376. The Committee Clerk: It is the nature of the argument. The Department has offered its reassurances, but, for whatever reason, the LRA is not willing to accept them. It is hard to comment on that, but members must make their own judgement.
377. The Chairperson: I want to move this on. We have three options. First, we can agree the clause. Secondly, we can reject it and ask for further consideration. Thirdly, we can go to a division and vote on it. Do members wish to accept clause 8?
378. Mr P Ramsey: I have some sympathy with Sue Ramsey’s proposition. We do not want to have a division on the clause. It is open to interpretation. If it were humanly and physically possible, could we delay a decision on this clause and convene a meeting on Monday or Tuesday to ratify any possible amendments?
379. The Chairperson: There are problems with the timescale. We have spent a large amount of time on this clause. We heard from the Labour Relations Agency no later than last week, and we heard from departmental officials. Departmental officials made it very clear to the Committee that the interpretation of clause 8 was such that it would not disadvantage people seeking their rights from the Labour Relations Agency.
380. The Committee Clerk: I will try to re-angle this. The Bill is moving from a duty to a power and from the LRA’s being made to do something to having discretion. Financial issues are not in the Bill, and the Bill is what needs to be considered. Everything else is implication and people’s interpretation. In this clause-by-clause consideration, we need to look at what the Bill says. The wording in the Bill is fairly simplistic and straightforward. It is moving from a duty to a power; it is moving from the idea of the LRA’s being forced to do something to its being allowed to prioritise. Finance is not mentioned in the Bill. The financial arguments relate to the Department and to the LRA; they are not in the Bill.
381. Mr Weir: I understand where Sue is coming from and what is being said. However, I also understand that we are under time constraints. I wonder whether this may be less a breakdown of the wording than an underlying breakdown of the relationship between the Department and the LRA. If that is the case, I suspect that giving them an extra couple of days to try to get something sorted out will not work, because there is a deeper underlying problem. In the light of what is in the Bill, as opposed to concerns about future developments, which are not in the Bill, I am happy to accept the clause.
382. The Committee Clerk: I suggest that the report reflects the heavy caveats, that members’ concerns are highlighted, that any agreement, if that is what members want, is based on what the clauses are literally saying, and that members and the Committee will have a watching brief on how the other issues develop. The vote is very much on the clauses as they are drafted.
Question put, That the Committee is content with the clause.
The Committee divided: Ayes 5; Noes 0.
AYES
383. Mr S Anderson, Mr Bell, Mrs D Kelly, Mr P Ramsey, Mr Weir.
Question according agreed to.
Clause 8 agreed to.
384. The Chairperson: I note that Claire McGill and Sue Ramsey abstained.
Clause 9 (Conciliation after bringing of proceedings)
385. The Committee Clerk: I will talk about clause 9 and clause 13 together. Clause 9 deals with industrial tribunals, and clause 13 deals with fair employment tribunals. We will come back to clause 13, but the two clauses need to be looked at together.
386. The purpose of these clauses is to give the LRA the duty to offer conciliation to parties that are involved in particular types of industrial tribunal cases. That is time limited to between seven and 13 weeks after a claim has been lodged. More complicated cases, including industrial tribunals and fair employment tribunal discrimination cases, are not subject to those limits. After the time limit expires in relevant cases, the agency is no longer under a duty to offer conciliation but retains the power to do so. Clauses 9 and 13 remove the legislative provisions requiring that the LRA’s duty to offer conciliation revert to a power to do so. It allows them to act independently.
Question, That the Committee is content with the clause, put and agreed to.
Clause 9 agreed to.
Clause 10 (Recovery of sums payable under compromises involving the Agency)
387. The Committee Clerk: Clause 10 is linked to clause 14 and is similar to clause 7. It deals with LRA-brokered settlements of issues that could, or otherwise would, be determined by a tribunal. The Committee spoke previously about the idea of streamlining and making things faster. Where a settlement includes an agreement for one party to pay the other a sum of money and that sum of money is not paid and the other party wishes to enforce payment, the clause will enable the party seeking payment to pursue the matter through the courts without the initial need to seek a County Court order. Again, it takes out that intermediate step. The clause will apply in cases only in which the conciliated settlement simply requires the claimant not to commence tribunal proceedings or, where they have begun, to end them. It will not be possible to use the process in situations in which the terms of the conciliated settlement are more complex.
Question, That the Committee is content with the clause, put and agreed to.
Clause 10 agreed to.
Clause 11 (Powers of Fair Employment Tribunal in relation to matters within jurisdiction of industrial tribunals)
388. The Committee Clerk: The fair employment tribunal has the power to hear, alongside the fair employment aspect of a complaint, additional aspects of a complaint that relate to other forms of alleged unlawful or unfair discrimination. Any other aspect of the complaint, such as a claim for unpaid wages or a breach of contract, must be heard and determined as part of a separate industrial tribunal proceeding. Since all aspects of the claim often arise from the same original set of facts, that duplication of effort, that is, the need to have two separate tribunal hearings, is administratively wasteful and an unnecessary burden on all the parties that are involved in a tribunal case. The aim of the clause is to amend existing legislation to remove that anomaly and to allow the fair employment and the industrial tribunal aspects of cases to be heard by the fair employment tribunal as part of one tribunal proceedings, rather than being split.
Question, That the Committee is content with the clause, put and agreed to.
Clause 11 agreed to.
Clause 12 (Conciliation before bringing of proceedings)
389. The Committee Clerk: The Committee dealt with clause 12 previously, and it is linked to clause 8. I gave the description of how the two clauses operate together. The Committee divided on clause 8, and it must decide what it wants to do with clause 12.
Question put, That the Committee is content with the clause.
The Committee divided: Ayes 4; Noes 0.
AYES
390. Mr S Anderson, Mr Bell, Mrs D Kelly, Mr P Ramsey.
Question accordingly agreed to.
Clause 12 agreed to.
391. The Chairperson: I note that Claire McGill and Sue Ramsey abstained.
Clause 13 (Conciliation after bringing of proceedings)
392. The Committee Clerk: Clause 13 was dealt with as part of my discussion of clause 9. I gave a full description of clause 13 at that point.
Question, That the Committee is content with the clause, put and agreed to.
Clause 13 agreed to.
Clause 14 (Recovery of sums payable under compromises involving the Agency)
393. The Committee Clerk: Clause 14 was similarly dealt with as part of the description of clause 10. The description still stands for clause 14.
Question, That the Committee is content with the clause, put and agreed to.
Clause 14 agreed to.
Clause 15 (Time off for study or training)
394. The Committee Clerk: Clause 15 applies with schedule 3 and deals with time off for study or training. Members will recall that this element was new to the Bill. It was not part of the Committee’s original consultation, but the Department consulted on it.
395. These provisions introduce powers that will allow for the subsequent introduction of a new right for qualifying employees, that is, those who have served 26 weeks as an employee, to make a formal request to their employer for time away from core duties to undertake study or training. An application will be for study or training that is intended to improve both an employee’s effectiveness at work and the effectiveness of the employer’s business. Therefore, a request cannot be an unrelated request; it must be relevant to an employee’s work and to their employer’s business.
396. Employers will be obliged to give serious consideration to such requests and can turn them down on the basis of a specified list of business reasons that is comparable to the list that is already in place for the right to flexible working. The business reasons that can be given for refusing a request are very similar to those for flexible working. The permissible grounds for refusal are listed at schedule 3, which is why clause 15 works with schedule 3.
Question, That the Committee is content with the clause, put and agreed to.
Clause 15 agreed to.
397. The Committee Clerk: We also need to agree the delegated powers of the Bill. Those have been examined by the Examiner of Statutory Rules, and he is content with them. I will run through very quickly where those delegated powers lie: clause 4(2); clause 5; clause 6(3); clause 10; clause 14; clause 17; and schedule 3.
398. The Chairperson: Are members content to agree the delegated powers?
Members indicated assent.
Clause 16 (Repeals)
399. The Committee Clerk: Clause 16 is the repeals clause. Essentially, this clause takes out or repeals any legislation that sits in the way of the Bill or that needs to be modified by the Bill.
Question, That the Committee is content with the clause, put and agreed to.
Clause 16 agreed to.
Clause 17 (Commencement)
400. The Committee Clerk: Clause 17 sets out when the Bill will be enacted.
Question, That the Committee is content with the clause, put and agreed to.
Clause 17 agreed to.
Clause 18 (Short Title)
401. The Committee Clerk: Clause 18 is the short title. At the moment, the running short title is the Employment (No. 2) Bill, because there were two Employment Bills running at the same time. This will obviously become the Employment Act 2011, because the previous Employment Bill was given Royal Assent this year, but that will not happen for this Bill until next year.
Question, That the Committee is content with the clause, put and agreed to.
Clause 18 agreed to.
402. The Committee Clerk: There are four schedules, which, as we have gone through, apply to different clauses.
403. Schedule 1 is the repeal of the statutory grievance procedures and the resulting consequential amendments. The Committee has agreed to schedule 1 already.
Schedule 2 agreed to.
Schedule 3 (Time off for study or training)
404. The Committee Clerk: Schedule 3 has two parts. Part 1 is time off for study or training, with provisions being inserted as Part 7A of the Employment Rights (Northern Ireland) Order 1996.
405. The Chairperson: Are members content to agree that part of the schedule?
Members indicated assent.
406. The Committee Clerk: Part 2 of schedule 3 deals with the related amendments to employment law that flow from the rights for training and time off for study.
407. The Chairperson: Are members content to agree that part of the schedule?
Members indicated assent.
Question, That the Committee is content with the schedule, put and agreed to.
Schedule 3 agreed to.
Schedule 4 (Repeals)
408. The Committee Clerk: Schedule 4 is the general list of existing legislation that must be repealed to enact the Bill.
Question, That the Committee is content with the schedule, put and agreed to.
Schedule 4 agreed to.
Long Title
409. The Committee Clerk: Members have to decide whether to agree on the long title of the Bill, which is: “A Bill to make provision about the procedures for the resolution of employment disputes and the procedures of industrial tribunals and the Fair Employment Tribunal; to make provision in relation to time off for study or training; and for connected purposes."
410. The long title lays out the scope of the Bill and would be assessed against making amendments to that Bill in the future.
Question, that the Committee is content with the long title, put and agreed to.
Long title agreed to.
411. The Committee Clerk: That completes the formal clause-by-clause scrutiny. It may be ambitious, but we hope to bring the report on the Bill to the Committee for its approval next week.
412. The Chairperson: That report will reflect the caveats, concerns and issues that have been raised.
Members present for all or part of the proceedings:
Mrs Dolores Kelly (Chairperson)
Mr Sydney Anderson
Mr Chris Lyttle
Mrs Claire McGill
Mr Pat Ramsey
Mr Peter Weir
413. The Chairperson (Mrs D Kelly): We now move to our consideration of the draft Committee report on the Employment (No. 2) Bill. I will hand over to the Committee Clerk.
414. The Committee Clerk: The nature of the timing with the Bill has meant that we have had to table the report. Please do not be dismayed by the fact that the report appears to be weighty. An awful lot of what has to go into a Bill report is simply a reflection of what the Committee has already decided. The report contains an executive summary that draws together what the Committee has done already. It also has an introduction that sets out what the Department and the Committee have done during the process of the Bill. The report is largely factual and is based on the discussions that have been held. Other parts of the collective Bill report will be made up of appendices that comprise the Hansard reports, the minutes, briefing papers and so on.
415. The report also contains the issues that the Law Centre and the Labour Relations Agency (LRA) raised, as well as responses from the Department. Those parts are, effectively, almost lifted from what those organisations said. As I said, the bulk of the report consists of that sort of detail and a lot of the points that have to be in it.
416. Mr Weir: We have gone through the detail anyway, so is it appropriate to propose that we approve the report en bloc?
417. Mr P Ramsey: I second that.
418. The Chairperson: We can do that. We seem to have covered the areas that members were concerned about in reflecting the views of the Committee. Are members content to agree the executive summary of the report?
419. Members indicated assent.
420. The Chairperson: Are members content to agree the introduction to the Bill report?
421. Members indicated assent.
422. The Chairperson: Are members content to agree the consideration section of the Bill report?
423. Members indicated assent.
424. The Chairperson: Are members content to agree the section in the report on the clause-by-clause scrutiny of the Bill?
425. Members indicated assent.
426. The Chairperson: Are members content with the Bill report in its entirety and that it be ordered to be printed?
427. Members indicated assent
428. The Committee Clerk: Are members content to agree to the minutes of this section of the meeting in advance of their inclusion in the report?
429. Members indicated assent.
The Employment Act 2008 followed an independent review of employment dispute resolution in the UK and a public consultation in GB. The Employment Act 2008 repeals employment law and regulations in the UK. As employment is a devolved matter this gives Northern Ireland the opportunity to tailor an employment dispute resolution structure that is tailored to suit local needs. This paper examines developments in GB and the review currently being conducted by the Department for Employment and Learning in Northern Ireland. Early resolution of disputes within the workplace is acknowledged as a favoured alternative to costly tribunals and this Research Paper examines models for alternative dispute resolution in the workplace.
Paper XX/XX December 2008
Library Research Papers are compiled for the benefit of Members of The Assembly and their personal staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise members of the general public.
The Employment Act 2008 received Royal Assent on 13 November 2008. It repeals previous legislation and regulations for employment dispute resolution in the UK. The intention of the 2008 Act is to simplify employment dispute procedures and make informal dispute resolution in the workplace a more viable option.
The review of employment law in GB had been necessary because the Employment Act 2002 and (Dispute Resolution) Regulations 2004 were resulting in more employment disputes reaching tribunal stage, instead of fewer as had been the intention. This was having financial implications for the Government, employers and employees. It is estimated that it costs the Government approximately £120 million per year to operate the employment dispute resolution system and an average cost to business of £9,000 to defend an employment tribunal claim. In addition there is emotional stress for employees that cannot be quantified.
Recommendations to come from the review in GB have reflected the need for a simplification of the system. Complexities had led to confusion for both employees and employers, particularly in small businesses, that meant proceeding straight to tribunal seemed a simpler and safer option.
As employment is a devolved matter, the Department for Employment and Learning (DEL) are conducting a review in Northern Ireland that will encourage the early resolution of workplace disputes within the workplace. Pre-consultation discussions have taken place with key stakeholders and DEL will be launching a public consultation early in 2009. Northern Ireland will have an opportunity to create an employment dispute resolution framework to suit local needs.
Methods of alternative dispute resolution will form a key part of the consultation. The Labour Relations Agency has a statutory duty to offer conciliation and arbitration services to parties involved in a workplace dispute before it goes to a tribunal hearing. Although it does not have a duty to do so, the Labour Relations Agency also offers a mediation service to employers and employees. DEL’s consultation will look at how models for dispute resolution can become a viable first option for resolving disputes at an early stage within the workplace rather than escalating to an Industrial Tribunal or Fair Employment Tribunal.
1.0 Introduction
2.0 The Gibbons Review
3.0 GB Consultation
4.0 Employment Act 2008
5.0 Northern Ireland Employment Dispute Resolution
5.1 Tribunal system in Northern Ireland
5.2 Case outcomes
6.0 Department for Employment and Learning Pre-consutation Process
7.0 Issues for Proposed Northern Ireland Consultation
7.1 Advantages of current procedures
7.2 Disadvantages of current procedures
8.0 Alternative Dispute Resolution (ADR)
8.1 Financial implications
9.0 Models for Alternative Dispute Resolution
9.1 Conciliation
9.2 Arbitration
9.3 Mediation
9.4 Early Neutral Evaluation
9.5 Rights Commissioner Model
9.6 Med-arb
9.7 Mandatory ADR
Conclusion
1.0 Introduction
This Research Paper will look at Alternative Dispute Resolution (ADR) in employment, currently the subject of review in Northern Ireland. Minimum standards for disciplinary and grievance procedures have been provided for by the Employment Act 2002 and (Dispute Resolution) Regulations 2004 since 2005 (2004 in GB)[1]. Following changes in GB, the Department for Employment and Learning propose launching a public consultation on employment dispute resolution in January 2009.
In March 2007 a Consultation[2] was launched in GB based on recommendations contained in an Independent Review of employment dispute resolution conducted by Michael Gibbons[3]. The need for a review was based on an acceptance by Government that the current legislation, although recent, was too administratively burdensome for both employers and employees. Contrary to its intention to reduce the need for litigation in employment disputes, it had led to an increase in cases brought to tribunal.
The Consultation allowed the Government to identify key legislative reforms contained in the Employment Act 2008 which received Royal Assent on 13 November 2008. The Employment Act 2008 repeals the legislation and regulations that also applied in Northern Ireland[4].
In comparison with GB, Northern Ireland has a high proportion of small business employers and a large public sector. Since employment is a devolved matter there is now an opportunity to create a bespoke employment dispute resolution model tailored to fit the needs of local business and employment[5].
This paper reviews the findings of the Gibbons Review, the Employment Act 2008 and proposed changes in GB. It will also include discussions the Department for Education and Learning held with key employment stakeholders in Northern Ireland prior to the public consultation on employment dispute resolution reform in 2009. Finally, it will look at models of alternative dispute resolution (ADR).
2.0 The Gibbons Review
An agreement that the regulations have not worked as intended led to the Government commissioning Michael Gibbons in December 2006 to conduct an Independent Review of employment dispute resolution in GB (‘the Gibbons Review’). The aim of the Gibbons Review was to simplify and improve all aspects of employment dispute resolution for both employer and employee.
When the Employment Act 2002 was introduced, small businesses had expressed their concern about the level of resources and expertise required to comply with the legislation. A year after the regulations that followed were implemented in 2004, the CBI claimed that many firms were settling cases they could have won because they were afraid of the cost of going to tribunals. There was also a perception that tribunals allowed weak and vexatious claims to be heard[6].
The Gibbons Review found that the procedures introduced in 2004 (2005 in Northern Ireland) had brought some benefits. There was now more clarity for employers and employees on the steps that needed to be followed in formally pursuing disciplinary and grievance cases. Employers were more likely to ensure their managers were trained in handling such situations and there was the opportunity to consider an employee’s grievance before submitting a tribunal claim, thereby offering an opportunity for early resolution.
However, the findings of the Review concluded that the costs outweighed the benefits, placing additional administrative pressures on employers and generally failing to deliver what had originally been intended. It is estimated that the average cost to business of defending an employment tribunal claim is £9,000[7] and that the dispute resolution system costs the UK Government around £120 million per year[8].
Gibbons summarised that overall:
In conducting the Review I was struck by the overwhelming consensus that the intentions of the 2004 Regulations were sound and that there had been a genuine attempt to keep them simple, and yet there is the same near unanimity that as formal legislation they have failed to produce the desired policy outcome. This is perhaps a classic case of good policy, but inappropriately inflexible and prescriptive legislation.
The Committee may wish to note that smaller employers reported that recording everything in writing could introduce a formality that often needlessly escalated a workplace issue.
Gibbons presented his main findings under the following headings:
Gibbons key recommendations were to:
3.0 GB Consultation
Building on the Gibbons Review the Government launched a Consultation[10] seeking views on resolving employment disputes successfully in the workplace. There were over 400 responses to the Consultation and following changes in the responsibilities of Government Departments the work is being taken forward by the Department for Business, Enterprise and Regulatory Reform (BERR)[11].
Based on the Review and Consultation, the Government response was published in May 2008[12]. It contained a number of measures the Government was considering, not all of which require primary legislation.
Measures to help resolve more disputes successfully in the workplace by:
Measures to help employers and employees resolve disputes beyond the workplace by:
Measures to make the employment tribunal system simpler and cheaper by:
4.0 Employment Act 2008
The Employment Act 2008 received Royal Assent on 13 November 2008. The changes to employment dispute resolution in the workplace in GB will inform consideration of the process in Northern Ireland.
The Employment Act 2002 (Dispute Resolution) Regulations 2004 included minimum ‘three-step’ dismissal, disciplinary and grievance standards. Unless the ‘three-step’ disciplinary procedures[14] were adhered to, any dismissal of an employee was automatically deemed by a tribunal to be unfair. Whether or not the dismissal would have been upheld by the tribunal if the three-steps had been followed was not a consideration. A primary recommendation of the Gibbons Review was the repeal of the three-step rule.
Sections 1-7 of the 2008 Act make the following changes to legislation and procedures in GB and will come into force in April 2009. The changes are outlined below[15].
Employment dispute resolution in Northern Ireland closely resembles that of GB. Therefore issues identified and proposals for change in GB are useful for consideration in the review in Northern Ireland. However, there are some key differences, notably the way in which the tribunal system is set up:
The Fair Employment Tribunal (FET) hears cases where discrimination on a religious or political basis is involved. The Office of the Industrial Tribunal and the Fair Employment Tribunal (OITFET) Annual Report 2006/07 shows that registered claims and complaints to the FET have fallen steadily over the last five years from 500 in 2002/03 to 160 in 2006/07[18].
Members may wish to consider if they think there is a need for two separate tribunal bodies (IT and FET) as opposed to one in GB.
Pressure has been mounting on the tribunal system in Northern Ireland in recent years. In order to support its work the department has introduced the following measures as part of a reform process[19]:
During the short time these measures have been in operation and despite criticism of their complexity, the Department for Employment and Learning (’the Department’) believes that early indications show they have had positive impacts.
A main impact the Department viewed as positive in the February 2008 pre-consultation document[20] was the Department’s estimate that, for the first time in years, the number of claims registered as a proportion of employees had fallen below that of GB. However, the Department acknowledges that this may be due to the bar having been raised for accepting claims, the complexity of the system acting as a deterrent, or that it only represents a temporary reduction while claimants and advisors adjust to the new statutory requirements.
The majority of tribunal claims do not proceed to a full hearing; 12% of IT and 10% of FET cases. Most cases have one of three outcomes; successful conciliation by the LRA, private settlement between the parties, or withdrawal. In 2006/07 24% of claims received by the LRA settled before a claim was made to a tribunal.
When cases register with a tribunal, even if they do not go to full hearing stage, there will have been a high degree of case management in the form of discussions and pre-hearing reviews. Some parties wait to settle until just prior to the hearing itself. The benefits of early resolution would therefore have an obvious beneficial effect on resources involved in the preparation and conducting of tribunals.
6.0 Department for Employment and Learning Pre-Consutation Process
Following the Gibbons Review and GB Consultation, the Department has been in discussion with key players in employment dispute resolution in Northern Ireland. The discussions were based around a pre-consultation document published by the Department in February 2008[22]. A desire for change has been identified and the Department intends to have a full review of employment dispute resolution in Northern Ireland beginning with a public consultation early in 2009. The desired outcome from such a review will be to have ‘a bespoke system that best reflects the needs of the Northern Ireland economy while upholding the rights of individual employees’[23].
Based on the discussions with key players and interest groups, GB recommendations that would make a useful starting point for discussion in Northern Ireland include:
These recommendations will form the basis of the Public Consultation the Department intends to conduct at the end of January 2009.
7.0 Issues for Proposed Northern Ireland Consultation
The outcome of the pre-consultation in Northern Ireland identified the advantages and disadvantages in retaining the statutory procedures currently operating in Northern Ireland. While many felt that NI should follow GB in dispensing with them, there were also arguments for their retention.
Opinions voiced in pre-consultation discussions showed that the statutory procedures did have their place. They provide a ‘safety valve’ that forces grievance issues to be raised and addressed between employers and employees, with the opportunity to resolve them. They also mean that employers are forced to respond to employee issues. Where discussion takes place, issues can be clarified and an informed decision made about whether there is a need to proceed.
Around the issue of smaller businesses operating in Northern Ireland, it was pointed out that the procedures equip employers with a ‘mandatory baseline’ that leads to ‘a degree of consistency’ among employers regardless of their size and knowledge of employment law.
Complexity is a recurring theme of any discussion around the statutory procedures and is in line with the findings of the Gibbons Review. A widespread view is that the ‘legislation itself has proven unfit for purpose’ and over-formalises dispute resolution processes from the beginning. It is argued that putting a dispute in writing at too early a stage encourages parties to become entrenched with a focus on the possibility of a tribunal, rather than considering a more informal approach. It was thought that the procedures could encourage formal rather than informal dispute resolution.
A lack of clarity about what precisely constitutes a grievance ‘places pressure on employers to scrutinise every written communication and to react formally if there is the slightest possibility that it could be seen as a stage one grievance letter. Employers therefore begin formal processes where this may not be necessary.’
In order to ensure that a claim will be accepted by a tribunal, a claimant has to decide at a very early stage whether they wish to follow statutory procedures as they will ultimately have to account for the decision on a tribunal claim form if they go to tribunal stage.
The Department acknowledge that the implications for the review show that ‘any fundamental review of dispute resolution systems will have to look carefully at whether statutory procedures have a future, how they can be modified if they do, and what might replace them if they do not.’
The Department concludes that the implications for the review that have come from the pre-consultation exercise show that[25]:
Stakeholders are agreed that tribunals provide an essential service where alternative methods of resolving a dispute have been tried but have failed, or where other methods are simply inappropriate. Beyond that, they have identified a range of issues that they would wish the review to explore, from the operation of the Rules of Procedure to the fundamental structure of the tribunal system. Drawing on these concerns, the dispute resolution review will set out to ensure that tribunals continue to be fit for purpose and are able to mesh successfully with any new arrangements that are made for wider dispute resolution.
8.0 Alternative Dispute Resolution (adr)
The Acas statutory Code of Practice[26] (‘the code’) on discipline and grievance states in its foreword:
Employers and employees should always seek to resolve disciplinary and grievance issues in the workplace. Where this is not possible employers and employees should consider using an independent third party to help resolve the problem. The third party need not come from outside the organisation but could be an internal mediator, so long as they are not involved in the disciplinary or grievance issue. In some cases, an external mediator might be appropriate.
The code replaces the 2004 statutory dispute regulations under the Employment Act 2008. Tribunals have the discretion to amend awards to parties if they have failed to comply with the code.
In Northern Ireland pre-consultation discussions, key stakeholders agreed on the need for a statutory code. Currently the LRA produces a code of practice on disciplinary and grievance procedures. However, there is no requirement to follow the code, but failure to do so can be taken into account if a case reaches tribunal stage.
As previously stated, the average cost in GB to a business where an employment case goes to tribunal is estimated at £9,000. The tribunal system costs the Government £120 million per year to administer[27].
Research published in November 2007 by the National Institute of Economic and Social Research[28] showed that for every pound spent by Acas, over £16 is returned. They claim that this generates benefits worth almost £800 million a year across businesses, for employees and for the economy in GB.
As a result of individual conciliation the research estimated that the intervention of Acas reduced employer’s potential costs by up to £223 million. This represented £138 million in lower legal costs and recruitment costs in cases that are settled compared with those that proceed to hearing and a saving of £6 million in compensation paid to employees. Employer’s costs in terms of management time spent on cases that proceed to hearing, compared to those that are settled, were worth £79 million. The taxpayer is also estimated to save over £71 million in the cost of tribunal hearing days as a result of fewer cases going to a tribunal.
It is obvious that financial savings could be made if circumstances favoured finding a resolution without registering with a tribunal. When registration takes place there is immediate involvement with case management until such time as a case is settled, however long that may take. Cases that ‘go to the wall’ and are withdrawn or settled just prior or on the day of a hearing are a waste of resources. LRA’s duty to provide conciliation was an effort to address this, but changes are required in statutory procedures to make it a more attractive and viable alternative to tribunals.
Through their conciliation service Acas reduced the potential workload of Employment Tribunals by 75%, slightly up on the previous year according to their 2007/08 Annual Report. The percentage of users for whom guidance helped solve a problem at work or reassured them they had taken the right course of action was 76%. Workplaces (81%) also reported an improvement in employment relations following intervention by Acas advisers[29].
9.0 Models for Alternative Dispute Resolution
The LRA provide a free conciliation service that is available before and after a tribunal hearing. When a claim is lodged with OITFET it is automatically copied to the LRA to offer their services. LRA can also be approached by employers and employees to provide conciliation where no claim has been made to a tribunal.
Conciliation is voluntary on the part of both parties, with either side free to withdraw at any time. Impartial and independent information is offered to focus attention on the issues involved and assist the parties to make informed decisions.
Conciliation does not involve any decision on the part of the LRA; who facilitate rather than direct discussion. Any decisions reached are the responsibility of the parties involved.
The Department found that stakeholders commended current conciliation processes for ‘providing neutral, non-directive assistance whilst leaving the parties themselves in control’. However, conciliation was felt to be more successful in situations where an employment relationship still existed rather than when it had already broken down and ended. Stakeholders felt it would be beneficial to explore the use of other methods of ADR.
Arbitration is also provided by the LRA. A case is only referred for arbitration when it applies to unfair dismissal or flexible working and because its remit is so narrow it is rarely used. Most employment cases will incorporate more issues than simply unfair dismissal or flexible working.
Although arbitration has to be agreed to in writing by both parties involved, unlike conciliation an independent arbitrator[30] will ultimately make a judgement in the case. Their judgement is binding on both parties and can only be appealed against on a point of law.
The LRA’s arbitration service is under-used and this is thought to be due to the lack of an appeal mechanism and its narrow remit. Legislation is in place to allow arbitration to be used in discrimination cases, but there is no such scheme in place. The Department feels that if the scope of the scheme was widened and an appeal mechanism put in place it may encourage use of the scheme.
The Committee may wish to consider whether they would recommend widening the remit of the scheme. Should this only include discrimination cases, or a general increase in the scope of the scheme?
In mediation parties to a dispute agree (usually with LRA assistance) on joint terms of reference to be put to a mediator or mediation panel. The LRA has a list of suitable independent mediators who take written and oral submissions from the parties involved and make formal non-binding proposals or recommendations to settle the dispute.
Since mediation involves a high time commitment on the part of the parties involved and the mediator, it is not considered the most suitable method for simple cases. It is also less suited where allegations need to be investigated or where legal points have been raised.
The Department point out[31] that if mediation were to be given a greater role in the system, a decision would have to be made about how and by whom it would be carried out.
The Committee may wish to consider whether the LRA would be the most suitable body to provide an expanded mediation service.
This involves an independent third party examining the details of a case and advising the parties involved of its likely outcome. During pre-consultation discussions it was suggested that such a service could be run by the LRA, possibly through a helpline service.
In a survey[32] of callers to its helpline in GB Acas found that those who reported being the most satisfied with the service were those without an HR specialist in their workplace or small organisations with one to four employees.
More than two thirds of employees who called the helpline said that it had been influential in helping them to reach a decision about an Employment Tribunal claim. Figures showed that approximately 16,000 prospective claimants decided against pursuing a claim after calling the helpline.
The survey also showed that more than two in five employers reported that calling the helpline had motivated them to update or improve their existing policies, particularly if they had no HR specialist in their business.
Given the number of small firms in Northern Ireland, the Committee may like to consider the merits of having a well publicised helpline service where employers and employees can seek advice at any time on employment issues and employment law.
In RoI the Rights Commissioner Service[33] is operated by, and a service of the Labour Relations Commission. The Service is independent in its functions and investigates disputes and grievances in the workplace.
It is only possible for a party to a dispute to object to a Rights Commissioner’s investigation under Industrial Relations Acts or Unfair Dismissals Acts, in which case the applicant can ask for the case to be heard by the Labour Court or Employment Appeals Tribunal. All other cases not referred under these Acts are investigated by the Rights Commissioner in the first instance.
A Rights Commissioner’s recommendation or decision can be appealed within certain time limits either by the Labour Court or Employment Appeals tribunal (depending on the relevant Acts) and their decision will be binding.
The Committee may wish to consider this model for its simplicity in relation to small businesses.
Med-arb[34] was not included in the Department’s pre-consultation discussions with key stakeholders. Med-arb is a recent development in ADR. It is intended to combine the advantages of both mediation and arbitration, while using the two methods separately within a single dispute. Both parties agree to take part knowing that if they fail to reach an agreement during mediation the next stage is arbitration when a decision will be delivered that is binding on both parties. Therefore it is important that both parties agree to the full process in advance, in the knowledge that the final outcome involves a binding decision by an arbitrator.
This model, on first consideration, would eliminate the possible expense of trying mediation and, if unsuccessful, having to bear the cost of a tribunal. It also provides an option to have the same expert independent mediator carry out the arbitration, but only if both parties agree.
There are advantages and disadvantages in having the same person involved in both mediation and if necessary arbitration. At arbitration stage it may be advantageous to have the same person who is familiar with the case. However, there may be a disadvantage in that they may have pre-conceptions from the mediation process making it difficult to reach a neutral binding arbitration decision. At mediation stage both parties feel free to discuss issues freely knowing that what is said remains confidential and is not divulged in a tribunal hearing. Some participants therefore prefer to introduce a new person/organisation to conduct arbitration and that choice will have to be made by both parties before the arbitration process begins.
There was no widespread support in pre-consultation discussions for mandatory ADR. Some stakeholders advocated an incentive where parties would have to explain their reasons to a tribunal if they had not taken part in voluntary mediation before having their case heard. This may have the advantage of leaving tribunals with cases that were more complex and could not be resolved through mediation and may set precedents in future. Another suggestion was barring access to tribunals unless ADR had been attempted.
Settling disputes within the workplace has obvious advantages, not least that it provides a better likelihood of an employee remaining in their post. Tribunal hearings carry costs, both financial and emotional.
However, there can be drawbacks to the use of ADR in employment disputes. ADRnow is an information website independent of Government and ADR providers[35]. In addition to providing information on models of ADR, it highlights some of the risks involved. The most relevant to employment dispute resolution is the possible imbalance of power between parties that may make face-to-face mediation unfair.
While mediators claim that mediation is quicker and cheaper than going to a tribunal and can produce a win/win solution, if mediation fails its cost will be additional to the tribunal cost.
There are diverse employment dispute resolution needs in Northern Ireland. These are more marked than in other jurisdictions as Northern Ireland has a high level of both small business and public sector employment. While the public sector has dedicated HR departments for handling employment disputes, small businesses need a model that is easy to understand and access. These differences in levels of knowledge and expertise will require consideration in employment legislation and regulation.
December 2008
[1] The Employment Act 2002 and (Dispute Resolution) Regulations 2004 available at: http://www.opsi.gov.uk/si/si2004/20040752.htm
[2] Success at Work: Resolving disputes in the workplace A Consultation March 2007: BERR available at: http://www.berr.gov.uk/files/file38553.pdf
[3] Michael Gibbons A Review of employment dispute resolution in Great Britain March 2007: BERR available at: http://www.berr.gov.uk/files/file38516.pdf
[4] The Employment Act 2002 and (Dispute Resolution) Regulations 2004
[5] Resolving workplace disputes: Report on the outcome of pre-consultation on possible reform of systems for resolving individual employment rights disputes in Northern Ireland October 2008: DEL
[6] CBI Press Release: ‘Tribunal system – one year on government reforms falling short’ 28 September 2005 in House of Commons Research Paper.
[7] BRE-PwC Administrative Burdens Database (2006).
[8] Executive Summary ‘A review of employment dispute resolution in Great Britain’ Michael Gibbons (March 2007).
[9] The procedure involves putting the problem in writing, holding a meeting to discuss it and, where the employee is dissatisfied, holding an appeal meeting.
[10] ‘Resolving disputes in the workplace’ A Consultation (March 2007): DTI.
[11] Department for Business, Enterprise and Regulatory Reform (BERR) website at: http://www.berr.gov.uk/
[12] Resolving Disputes in the Workplace Consultation: Government Response (May 2008): BERR available at: http://www.berr.gov.uk/files/file46233.pdf
[13] ‘Employment Bill [HL] 2007-08’ House of Commons Research Paper 08/63, 11 July 2008
[14] The three step procedure the employer had to follow was written notification to an employee of allegations, a meeting to discuss and inform employee of the employer’s decision and the right of the employee to appeal.
[15] Information taken from Employment Act 2008 Explanatory Notes.
[16] Tribunals have had this power since 2002, but it has never been used.
[17] Unlike Acas, the LRA can continue to carry out conciliation after a tribunal hearing.
[18] OITFET Annual report 2006/07 available at: http://www.employmenttribunalsni.co.uk/annual_report_final_2006-2008.pdf
[19] ‘Resolving workplace disputes: A pre-consultation on possible reform of systems for resolving individual employment rights disputes in Northern Ireland’ February 2008: DEL
[20] ‘Resolving workplace disputes: A pre-consultation on possible reform of systems for resolving individual employment rights disputes in Northern Ireland’ February 2008: DEL
[21] ibid
[22] ibid
[23] ‘Resolving workplace disputes: Report on the outcome of pre-consultation on possible reform of systems for resolving individual employment rights disputes in Northern Ireland’ October 2008: DEL
[24] Refers to the position established by the case of Polkey v A. E. Dayton where the House of Lords ruled that an employer’s failure to adhere to procedures rendered a dismissal unfair except in exceptional circumstances. However, a compensation award could be reduced or eliminated if it is judged the employee would have been dismissed in any case if the procedures had been followed.
[25] ‘Resolving workplace disputes: Report on the outcome of pre-consultation on possible reform of systems for resolving individual employment rights disputes in Northern Ireland’ October 2008: DEL
[26] The Acas Code of Practice will come into effect on 6 April 2009. It has been approved by the Business Secretary, Lord Mandelson. Until parliament gives final approval it remains in draft form and can be accessed at: http://www.acas.org.uk/CHttpHandler.ashx?id=961&p=0
[27] Michael Gibbons A Review of employment dispute resolution in Great Britain March 2007: BERR available at: http://www.berr.gov.uk/files/file38516.pdf
[28] ‘A Review of the Economic Impact of Employment Relations Services Delivered by Acas’ November 2007 available at: http://www.niesr.ac.uk/pdf/141107_91327.pdf
[29] Acas Annual Report 2007/08 available at:
[30] The LRA have a panel of experts and can appoint an individual or panel to act as an independent arbitration service to decide how a dispute will be settled.
[31] ‘Resolving workplace disputes: Report on the outcome of pre-consultation on possible reform of systems for resolving individual employment rights disputes in Northern Ireland’ October 2008: DEL (paragraph 7.9).
[32] ‘Acas Helpline Survey 2007’ Acas Research Paper available on the Acas website at: http://www.acas.org.uk/media/pdf/m/7/0307_Acas_Helpline_survey_2007_e-vers(FINAL).pdf
[33] Rights Commissioner Service website at:
http://www.lrc.ie/ViewDoc.asp?fn=/documents/work/rights_commissioner.htm
[34] Included on the ADRnow website available at: http://www.adrnow.org.uk/go/Default.html;jsessionid=a3ZA5WbZBFJb
[35] ADR website is available at: http://www.adrnow.org.uk/go/Default.html;jsessionid=a3ZA5WbZBFJb
This paper provides background to and an overview of the Employment (No 2) Bill, which was introduced into the Assembly on the 7th June 2010. The purpose of the Employment (No 2) Bill is to introduce new arrangements for workplace dispute resolution and to introduce a new right for time for training. In addition the Bill will repeal existing statutory grievance procedures.
Paper XX/XX 17th June 2010
Research and Library Service briefings are compiled for the benefit of MLA’s and their support staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise members of the general public. We do, however, welcome written evidence that relate to our papers and these should be sent to the Research & Library Service, Northern Ireland Assembly, Room 139, Parliament Buildings, Belfast BT4 3XX or e-mailed to RLS@niassembly.gov.uk
The Employment (No 2) Bill (henceforth referred to as “The Bill") is intended to reform workplace dispute resolution. Following an extensive public consultation the Minister for Employment and Learning has determined that the statutory procedures in respect of discipline and dismissal matters should be retained, with workplace grievances being addressed on the basis of a Labour Relations Agency code of practice. It is therefore proposed to repeal the statutory grievance procedures via the Bill.
Also in light of the outcome of the review, the Bill sets out changes designed to contribute positively to the smooth operation of industrial tribunals and the Fair Employment Tribunal[2].
In addition the Bill adds a new right for employees to be able to request time to train. The intention of time to train is to help raise employees’ awareness and aspirations in relation to skills and encourage more employers to invest in training for employees, contributing towards improved business performance and competitiveness[3].
The Bill intends to reform the existing workplace dispute resolution process and introduce a right to request time to train by[4]:
Review of the consultation documents for both aspects of the Bill found that the majority of respondents were in favour of the proposals. There were some concerns raised, including:
Key Points
Executive Summary
Contents
1 Introduction
2 Background
3 Results of Consultations
4 Equivalent Legislation in Great Britain
5 Purpose of the Bill
6 Overview of the Bill
7 Content of the Bill
8 Option Consideration
9 Costs
10 Human Rights Issues
11 Equality Impact Assessment
1 Introduction
The Employment (No 2) Bill (henceforth referred to as “The Bill") is intended to reform workplace dispute resolution and introduce a new right to employees “Time to Train".
The current process for workplace dispute resolution was introduced on 3rd April 2005, and gave new rights and responsibilities to both employers and employees in Northern Ireland[5].
Under this legislation, if a dispute can not be sorted out informally, then both employers and employees must follow minimum procedures for resolving disputes about employment issues. These minimum procedures are for dealing with grievances (complaints by an employee) and with disciplinary action and dismissal (actions the employer can take against an employee).
Where a dispute over an employment issue can’t be resolved at work, the people involved can request help from the Labour Relations Agency or they can lodge a claim with an industrial tribunal (or, where relevant, the Fair Employment Tribunal). In most cases the Labour Relations Agency has a duty to try to resolve such claims without the need for a tribunal Hearing, but when all other efforts to resolve the issue have been unsuccessful the tribunal will be able to provide a legal judgement about the problem.
The proposed Bill will replace the existing statutory grievance procedure and introduce a Workplace Dispute Resolution system that better reflects local needs and priorities[6].
Time to Train is a new right which entitles employees to request time to train from employers. Implementation of the law will bring Northern Ireland into compliance with other UK regions which had the right introduced in the Apprenticeships, Skills, Children and Learning Bill 2009.
2 Background
The Department for Employment and Learning briefed the Committee for Employment and Learning about its intention to reform workplace dispute resolution procedures on the 12th of November 2008.
At this meeting, DEL provided its initial plans regarding workplace dispute resolution procedures. The Bill itself has two main parts:
For workplace dispute resolution, DEL carried out an initial pre-consultation from the 13th of February to the 11th of April 2008 which revealed a general desire for reform of the current systems amongst stakeholders.
Following the completion of the pre-consultation, DEL carried out a twelve week public consultation from the 1st of June to the 4th of September 2009[7], with the Department’s report on the public consultation issued in November 2009. A further briefing from DEL to the Committee took place on the 14th October 2009 on the consultation stage and what steps would be taken in regards implementing the policy.
A separate consultation was carried out for Time for Training from the 31st of July to the 23rd of October 2009 with a post consultation report due to be released on or around the 18th of June[8].
A final Departmental brief occurred on the 20th of January 2010 in closed session. On the 27th of May the Executive agreed for the Bill to move forward and it was subsequently drafted, and introduced to the Assembly on the 7th of June 2010.
3 Results of Consultations
In May 2009 DEL produced a consultation document on policy proposals for improving systems for resolving disputes that arise in the workplace. The consultation document included partial regulatory impact assessment and referenced the findings of preliminary equality and human rights impact assessments. The impact assessment process also took account of potential social inclusion and health impacts.
In total the department received 38 responses, 33 of which contained substantive comment. A list of the respondents can be found in Appendix 1.
The consultees were asked to respond to 36 questions in total, covering a variety of areas within the overall topic such as should the current appeals process be restructured and how can the LRA improve its services[9]. Not all respondents answered every question.
There were some areas of contention within the consultation and these are discussed below.
Question 7 asked if there was a need for inspection/enforcement machinery to produce more legally compliant workplaces. The department received twenty replies, with the majority either opposed to the proposal or believed that the matter would require further exploration before any definitive decision could be taken. It should be noted that opposition came mainly from employers, with support coming particularly from citizen advocacy groups such as the Citizens Advice Bureau which stated:
It is the view of many CAB advisers that hitting such employers in their pockets is the only way to ensure compliance with the full range of statutory employment rights.
The Department concurred with the majority view, but acknowledged that advocates of inspection/enforcement had contributed helpfully to the debate.
When consultees were asked to comment on whether the Labour Relations Agency (LRA) arbitration scheme should be expanded to cover a wider range of jurisdictions (it currently covers two – unfair dismissal and flexible working), five respondents commented positively, five opposed it and two favoured the development of alternative arrangements.
Of those that commented negatively, the Law Centre for Northern Ireland stated that:
The current LRA arbitration scheme is under utilised and we doubt that expansion of the range of jurisdictions would result in sufficiently greater uptake to make a meaningful difference in resolving the problems we have identified in the dispute resolution process.
However, other groups felt that in order to increase take up of the scheme, expansion was a necessary part:
In order for take-up of the scheme to increase its remit needs to be expanded. It is quite often the case that workers seek to bring claims on more than one issue and therefore the existing statutory scheme may not be available for some parts of the same dispute.
Citizens Advice Bureau
From the consultations, DEL concluded that widening the LRA’s arbitration scheme so that cases may be heard from across the range of jurisdictions that are currently dealt with by the tribunals would be of benefit.
In a related question, eleven out of nineteen respondents wished to see time limits on the LRA’s duty removed, with the remaining eight wanting some form of time limit retained. This included Antrim Borough Council and Down District Council which stated jointly:
It would appear to be advantageous to seek to resolve issues at the earliest opportunity and therefore time limits would greatly assist with focusing parties on resolution. These might be extended in exceptional circumstances.
However, DEL intends to repeal time limits stating that:
Time limits have not had the desired consequences.
The Department found via the consultation process that when the LRA’s staff believes that there are realistic prospects of settling a dispute. It will continue to use its power to conciliate once its duty to do so (i.e. the time limit) has expired.
Repealing the time limits will, in the department’s opinion, recognise the reality of current practice and acknowledge that the current provisions do not have their intended effect.
In addition the consultation asked respondents if they felt a tribunal should be empowered to penalise unreasonable behaviour during the alternative dispute resolution process (ADR) process. Eleven of twenty one respondents stated they would agree with this and that it would ensure the process was taken seriously, with the Royal College of Nursing suggesting that “the provision of some form of incentivized mediation/conciliation service would ensure that the services of the Labour Relations Agency could be more extensively utilised".
The remaining ten respondents opposed any sanctions, arguing that if ADR was tantamount to a mandatory process its effectiveness and value would be compromised.
The Department agreed that it would be inappropriate to make ADR a mandatory process as it is intended to offer an alternative to the Tribunal System and is not supposed to be a hurdle on the way to obtaining a legal determination.
The department received twenty two responses in total, thirteen of which contained substantive content. Consultees were asked eight questions in relation to Time to Train. A list of respondents can be found in Appendix 2[10].
Whilst the vast majority of respondents supported the right to train, the Federation of Small Businesses (FSB) opposed the proposition outright. It argued that:
Northern Ireland’s training strategy would be better implemented through the skills agenda and business support initiatives rather than through the introduction of additional legislation.
When asked by the Department if there were any circumstances in which an employer can withdraw support for training, DEL received six responses, four of which suggested that there ought to be circumstances in which this was possible, such as unforeseen circumstances and financial difficulties.
The Citizens Advice Bureau opposed this, stating:
It would be unfair to an employee to have begun a course, or made arrangements to commence training, only to find that their employers support has been withdrawn.
The Department, however, agrees that employers should be able to withdraw support and has concluded that the approach adopted in GB, where consultees held similar views is a sensible one.
In this the Department for Business Innovation and Skills (BIS) committed to provide guidance that the employer and employee should jointly agree, at the time the request is granted, any circumstances in which the employers support can be withdrawn.
DEL concluded that:
It is evident that a clear majority of respondents to the public consultation feel that the introduction of the proposed new right will be a positive development.
4 Equivalent Legislation in Great Britain
Workplace Dispute Resolution
In March 2007, the UK Government published the findings of an independent review group charged with investigating how systems in Great Britain for resolving individual employment rights disputes could be improved.
The report[11] involved an extensive consultation with stakeholders and included a series of meetings and focus groups[12]. Following publication of the Gibbons report, a public consultation was carried out its recommendations.
A key recommendation of the report and a central plank of the subsequent legislation has been the removal, from April 2009, of the statutory workplace dispute resolution procedures that have been in place since October 2004.
The procedures, designed for use where informal approaches failed, required most people wishing to pursue a complaint at work to:
If the procedures were not followed it was possible for penalties to be made, such as adjustments to any subsequent tribunal awards. Comparable procedures were put in place for employers to follow when dealing with disciplinary matters and dismissals, involving putting the matter in writing, holding a meeting with the employee to discuss it and a subsequent appeal meeting where the issue was not resolved. Failure to adhere to the procedures could lead, in subsequent tribunal proceedings, to an automatic finding of unfair dismissal or, in less serious cases, to an adjustment of the award to take account of the failure.
Stakeholders in GB held a majority view that the procedures, whilst well-intended, were proving counter-productive in that they brought an unhelpful level of increased formality and complexity to the dispute resolution system. Rather than assisting in resolving issues, the procedures were believed to encourage employees and employers to think in terms of a potential Employment Tribunal claim from the outset. Stakeholders told the Department for Business, Enterprise and Regulatory Reform (BERR) that less formal systems were needed.
Responding to this majority opinion against the statutory procedures, the GB programme of reform:
The other key element of the GB reform package is its focus on the role of the Advisory, Conciliation and Arbitration Service (ACAS - the GB equivalent to the LRA) in promoting the earlier resolution of disputes that cannot be resolved at work. This involves:
In England, the Department for Innovation, Universities and Skills (DIUS) produced a consultation paper in June 2008 on the introduction of the right to request time to train from employers[13]. At the same time, similar consultations were carried out by the Scottish Executive and the Welsh Assembly Government.
The Consultations sought views on whether or not the new right would help skills development. The consultation closed in September 2008 and received 236 responses in total. Of these 155 were from England, 43 from Scotland and 38 Wales.
The overall response from the three jurisdictions was positive and revealed strong support for the proposal. However, a number of employers, especially small business, raised concerns regarding increased costs and bureaucracy as a result of the introduction of the right.
The UK government, in agreement with the Scottish and Welsh devolved administrations proceeded with introducing the right for employees to request to train within Clause 39 of the Apprenticeships, Skills, Children and Learning Bill 2009.
5 Purpose of the Bill
The Bill is intended to reform workplace dispute resolution. Following an extensive public consultation the Minister for Employment and Learning has determined that the statutory procedures in respect of discipline and dismissal matters should be retained, with workplace grievances being addressed on the basis of a Labour Relations Agency code of practice. As such the Bill will repeal the current statutory grievance procedures.
The Bill also sets out changes designed to contribute positively to the operation of industrial tribunals and the Fair Employment Tribunal[14].
The right to ask for time to train is intended to help raise employees’ awareness and aspirations in relation to skills development and encourage more employers to invest in training their employees, contributing towards improved business performance and competitiveness[15].
6 Overview of the Bill
7 Content of the Bill[16]
Statutory procedures requiring certain steps to be taken to deal with disputes in the workplace came into operation in April 2005. Separate but similar procedures apply to disciplinary and dismissal matters raised by employers and grievances raised by employees. The steps consist of a general requirement for written notification of the issue, a subsequent meeting between employer and employee and, if appropriate, an appeal. Where the employer or the employee fails to use the minimum statutory procedures, Articles 17 and 18 of the 2003 Order require a tribunal, other than in exceptional circumstances, to increase or decrease any award.
Clause 1 has the effect of removing the statutory grievance procedures from statute. This is primarily achieved through the repeal of Part 2 of Schedule 1 to the 2003 Order, which sets out the statutory grievance procedures. The Clause also repeals Articles 19 and 20 of the Employment (Northern Ireland) Order 2003 (the 2003 Order), which prevent a grievance from being presented, respectively, to an industrial tribunal and the Fair Employment Tribunal where certain requirements of the statutory grievance procedures have not been completed. Finally, it gives effect to the consequential amendments in Schedule 1 which remove all other references to the statutory grievance process.
The Clause does not impact upon the future operation of the statutory disciplinary and dismissal procedures, which are retained in Parts 1 and 3 of Schedule 1 to the 2003 Order. Articles 17 and 18 of the 2003 Order, referred to above, continue to have effect where disciplinary and dismissal procedures apply.
Clause 2 repeals Article 16 of the 2003 Order, which implies in every contract of employment a duty to observe the statutory dispute resolution procedures in circumstances specified by the Department in regulations. Neither the Article nor the corresponding provision in Great Britain (section 30 of the Employment Act 2002, now repealed) was ever commenced in full, and no regulations were made under this provision. The Department has no plans to utilise this provision.
Clause 3 repeals Articles 21 and 22 of the 2003 Order. These Articles contain regulation-making powers which have enabled a link to be established between application of the statutory dispute resolution procedures with time limits on claims, respectively, to an industrial tribunal and the Fair Employment Tribunal. Regulations made under these Articles specify that, under the statutory disciplinary and dismissal arrangements, where an employee has reasonable grounds for believing a procedure is ongoing at the point where the normal time limit for applying to a tribunal expires, that time limit will be extended by three months. Under the statutory grievance arrangements, the provisions regarding time limits are more complex; however, in essence, they allow for extension of the time to present a claim by three months where a grievance is lodged with the employer in writing within a specified time.
The effect of the repeals contained in this Clause is to sever the connection between the remaining statutory procedures, relating to disciplinary and dismissal situations, and time limits for lodging tribunal claims. The intention of the repeal is to simplify time limits, removing confusion that was generated by the provisions for extending them, and to provide for consistency between time limits relating to grievance and disciplinary/dismissal situations.
Clause 4 inserts into the Industrial Relations ( Northern Ireland) Order 1992 (the Industrial Relations Order) a new Article 90AA. The Article applies to grievances of a kind listed in the newly-inserted Schedule 4A of that Order, and specifies the consequences of an employer’s or employee’s failure to comply with a provision of a relevant Code of Practice. Non-compliance will result in a subsequent tribunal being empowered, where it considers it just and equitable, to apply an increase or reduction to any award of up to 50%.
These arrangements replace the statutory workplace grievance procedures with a more straightforward mechanism allowing a tribunal discretion as to whether and to what extent it is appropriate to penalise a party for unreasonable failure to adhere to good practice steps. Those steps will be set out in a revised Labour Relations Agency Code of Practice.
Inserted Article 90AA goes on to provide that an award cannot be adjusted in respect of the new grievance arrangements where the statutory disciplinary and dismissal procedures apply. This precludes the possibility of separate adjustments being made under the now differing grievance and disciplinary/dismissal mechanisms.
An Article 90AA adjustment will be applied before any adjustment is made under Article 27 or 28 of the 2003 Order. Articles 27 and 28 relate, respectively, to industrial tribunal and Fair Employment Tribunal proceedings. They provide that adjustments to awards can be made by a tribunal where an employer has failed to provide an adequate written statement of employment particulars.
Finally, the inserted Article empowers the Department for Employment and Learning, with the approval of the Northern Ireland Assembly, to modify the list of jurisdictions in Schedule 4A to the Industrial Relations Order. Schedule 4A to that Order is set out as Schedule 2 to the Bill.
Article 9(3A) of the Industrial Tribunals (Northern Ireland) Order 1996 (the Industrial Tribunals Order) provides that industrial tribunals may be authorised to decide cases without any hearing.
Clause 5 inserts new paragraphs (3AA) and (3AB) into Article 9 of the Industrial Tribunals Order, specifying that the industrial tribunal procedure for determining matters without a hearing must ensure that all parties to the proceedings consent in writing to the process.
The change is intended to support a process for settling simple disputes, without the need for tribunal hearings, on the basis of documentation submitted to a tribunal.
The Clause ensures that tribunals may continue to exercise their powers to issue default judgements without a hearing, and that the consent of parties is not required in these circumstances.
Article 13 of the Industrial Tribunals Order provides that regulations may enable an industrial tribunal to make a restricted reporting order where proceedings involve allegations of sexual misconduct. Article 13 also allows provision to be made preventing the identification of an individual affected by or making an allegation concerning a sexual offence.
Clause 6 extends the scope of Article 13 of the Industrial Tribunals Order. It extends the potential scope of regulations so that they may provide for the making of a restricted reporting order in cases where the disclosure of certain information would be likely to put an individual or property at risk or, alternatively, where the tribunal considers that the interests of justice require such an order to be made.
The intent of the provision is to facilitate individuals who are deterred from going to tribunal because they foresee adverse consequences arising from public disclosure of certain sensitive information, such as information concerning their sexual orientation. The measure is not solely intended to benefit claimants; it applies to all parties, and individuals other than the parties, who may be adversely affected by the disclosure of such information.
Clause 7 amends Article 17(1) of the Industrial Tribunals Order, removing the requirement to seek a county court order for enforcement purposes. The amendment ensures that awards made by an industrial tribunal are enforceable by individuals in the same way as a county court order.
Clause 8 inserts amendments into Article 20 of the Industrial Tribunals Order. Article 20 specifies the circumstances in which the Labour Relations Agency (LRA) is obliged, or has the power, to offer conciliation.
Article 20(3) of the Industrial Tribunals Order applies to conciliation in situations where a person could bring tribunal proceedings, but has not yet done so. It provides that where conciliation is requested, the LRA conciliation officer has a duty to attempt to facilitate the parties in reaching a conciliated settlement to the dispute (where both parties have made the request), or (if only one party has made the request) to do so where there is a reasonable prospect of success.
Paragraph (2) of the Clause amends Article 20(3) of the Industrial Tribunals Order to replace this obligation with a discretionary power to conciliate in a pre-tribunal dispute without requiring the LRA officer to justify the reasons for his or her decision as to whether or not to offer conciliation. The intention of the amendment is to enable the LRA to prioritise cases where demand for conciliation exceeds resources available and to relieve the LRA of the obligation to offer conciliation in pre-tribunal disputes where there is no prospect of success.
Article 20(5) of the Industrial Tribunals Order provides that, where a person claims that an unfair dismissal complaint under Article 145 of the Employment Rights (Northern Ireland) Order 1996 (the Employment Rights Order) could be, but has not yet been, made, the LRA officer must act as if that claim had been made and, as provided for in Article 20(4) of the Industrial Tribunals Order, as part of the conciliation exercise, attempt to secure reinstatement or reengagement (or additional compensation in lieu of such) for the dismissed employee. Paragraph (3) of Clause 8 repeals that duty and substitutes a discretionary power to seek such reinstatement or reengagement in pre-tribunal disputes.
Article 20(2A) of the Industrial Tribunals Order 1996 requires that, where industrial tribunal rules provide for the postponement of hearings for a fixed period, to allow an opportunity for conciliation and settlement, the LRA’s duty to offer conciliation continues during the fixed period but thereafter becomes a discretionary power. Article 21(2) further requires that any such rules must also provide for notification to the parties that conciliation services may be withdrawn after the fixed period has ended.
Clause 9 repeals the above provisions, with the effect that the LRA’s duty to offer conciliation during tribunal proceedings is no longer time limited.
Clause 10 concerns sums payable under conciliated settlements, reached with the assistance of the LRA, where there is agreement to avoid industrial tribunal proceedings. It inserts a new Article 21A into the Industrial Tribunals Order specifying that sums payable under such settlements are to be treated as though payable under a county court order, except where the terms of the conciliated settlement require the person to whom the sum is payable to do anything other than discontinue or not start proceedings. Where the settlement does require some other action, recovery of the sum requires a county court order.
The inserted Article also provides that the sum is not recoverable if the person by whom the sum is payable successfully applies to an industrial tribunal or county court for a declaration that it would not be recoverable under the general law of contract. No action may be taken to recover the sum while such an application is pending.
Provision is made whereby county court rules can specify a time period during which a sum is not recoverable. Finally, the inserted provision sets out regulation-making powers in relation to time limits and when an application is to be treated as pending.
Under Article 85(2) of the Fair Employment and Treatment ( Northern Ireland) Order 1998 (the Fair Employment and Treatment Order), the Fair Employment Tribunal may take on the powers and functions of an industrial tribunal in relation to certain jurisdictions. These jurisdictions relate to unlawful discrimination and unfair dismissal, as specified in Article 85(1).
However, there are certain cases which involve fair employment together with an industrial tribunal jurisdiction – such as unlawful deductions from wages or holiday pay – which, if they are not associated with jurisdictions already covered by Article 85, may not be heard by the Fair Employment Tribunal in this way. As a result, in cases involving fair employment and these industrial tribunal jurisdictions, issues arising from essentially the same set of facts must be the subject of separate industrial tribunal and Fair Employment Tribunal proceedings. Additional time, effort and money is expended on two tribunal processes where one should suffice.
Clause 11 amends Article 85 of the Fair Employment and Treatment Order so that, where the President or Vice-President of Industrial Tribunals and the Fair Employment Tribunal so directs, the Fair Employment Tribunal will be capable of assuming the powers and functions of an industrial tribunal to deal with all aspects of the case which would normally fall to be heard by an industrial tribunal.
Article 88 of the Fair Employment and Treatment Order is drafted in similar terms to Article 20 of the Industrial Tribunals Order. It specifies the circumstances in which the LRA is obliged, or has the power, to offer conciliation. Paragraph (2) of Article 88 applies to conciliation in situations where a person could bring proceedings before the Fair Employment Tribunal, but has not yet done so. It provides that where conciliation is requested, the LRA conciliation officer has a duty to attempt to facilitate the parties in reaching a conciliated settlement to the dispute (where both parties have made the request), or (if only one party has made the request) to do so where there is a reasonable prospect of success.
Clause 12 makes amendments to Article 88 in respect of LRA conciliation in fair employment cases which are similar to those made in respect of other jurisdictions by Clause 8. It replaces the obligation to assist the parties described above with a discretionary power to conciliate in a pre-tribunal dispute without requiring the LRA officer to justify the reasons for his or her decision as to whether or not to offer conciliation. The intention is to enable the LRA to prioritise cases where demand for conciliation exceeds resources available and to relieve the LRA of the obligation to offer conciliation in pre-tribunal disputes where there is no prospect of success.
Clause 13 repeals paragraph (1A) of Article 88 of the Fair Employment and Treatment Order. Paragraph (1A) requires that, where Fair Employment Tribunal rules provide for the postponement of hearings for a fixed period, to allow an opportunity for conciliation and settlement, the LRA’s duty to offer conciliation continues during the fixed period but thereafter becomes a discretionary power. Paragraph (1A) further requires that any such rules must also provide for notification to the parties that conciliation services may be withdrawn after the fixed period has ended.
The provisions in this Clause correspond to those in Clause 9; their effect is that the LRA’s duty to offer conciliation during Fair Employment Tribunal proceedings is no longer time limited.
Clause 14, which replicates Clause 10 in respect of fair employment cases, inserts as new Article 88A into the Fair Employment and Treatment Order. The inserted provision concerns sums payable under settlements conciliated with LRA assistance, under Article 88 of that Order, where there is agreement to avoid Fair Employment Tribunal proceedings. It specifies that sums payable under such settlements are to be treated as though payable under an order of the Fair Employment Tribunal, except where the terms of the conciliated settlement require the person to whom the sum is payable to do anything other than discontinue or not start proceedings. Where the settlement does require some other action, recovery of the sum requires a county court order.
The inserted Article also provides that the sum is not recoverable if the person by whom the sum is payable successfully applies to the Fair Employment Tribunal or county court for a declaration that it would not be recoverable under the general law of contract. No action may be taken to recover the sum while such an application is pending.
Provision is made whereby county court rules can specify a time period during which a sum is not recoverable. Finally, the inserted provision sets out regulation-making powers in relation to time limits and when an application is to be treated as pending.
Clause 15 inserts, as a new Part 7A (Articles 95A to 95G) of the Employment Rights ( Northern Ireland) Order 1996 (the 1996 Order), the provisions set out in Part 1 of Schedule 3. It also makes amendments, set out in Part 2 of Schedule 3, which are required to be made as a consequence of the insertion of the new Part 7A of the 1996 Order.
New Article 95A of the 1996 Order introduces a right for qualifying employees to make a statutory application to their employer in relation to study or training. The request must meet certain conditions in order to be valid; for example, it must be for study or training that is intended to improve an employee’s effectiveness at work and the performance of the employer’s business. Further validity conditions may be set out in regulations made by the Department.
Under paragraph (6) of the new Article, an employee must meet certain requirements as to duration of employment in order to qualify for the right, and paragraph (7) makes clear that the right does not apply to employees of compulsory school age, young people who already have a statutory right to paid time off for study or training and agency workers. To allow for flexible responses to changing circumstances, the Department is empowered to make regulations, subject to the confirmatory procedure, specifying other types of person to be excluded from the right. Article 95A finally provides, in paragraph (9), that the statutory arrangements do not affect other approaches to determining and delivering training needs (for example through annual appraisal systems).
New Article 95B allows a request to be for training of any kind (including in-house training or attendance at external events). It also specifies that more than one course of training or study may be included in a single request; thus, an employee who identifies a need for basic skills training in numeracy followed by a full job-related course at level 2 would be able to include both courses of training in their request. Paragraph (3) of new Article 95B provides that it is not essential that the training lead to the award of a qualification of any sort. It will therefore be possible for an employee to request to undertake any study or training that the employee believes will make him or her more effective in a current or future role in the employer’s business and improve the employer’s business performance.
Article 95B(4) sets out the information which an employee must include in a request. The request must include details of the subject matter of the study or training, where and when it would take place, how long it would last, who would provide or supervise it and whether it would lead to a qualification. The request must also state how the training would make the employee more effective and improve the performance of the business. Paragraph (5) also includes a power for the Department to make regulations specifying the form of the application.
New Article 95C specifies that employers must deal with requests in accordance with regulations made by the Department. Paragraph (1) means that an employer has to deal with only one application from the employee in any 12 month period. However, in certain circumstances, an employer could be required to disregard an earlier application which has been submitted. These circumstances would be set out in regulations made under paragraph (3).
Paragraph (4) enables the Department to make regulations specifying how employers should deal with an application. An employer may refuse a request (or part of one) only where the employer thinks that granting it (or part of it) would be detrimental to the business for one or more of the following reasons: lack of benefit to the business in terms effectiveness or performance; burden of additional costs; negative effect on customer demand, quality or performance; inability to re-organise work or recruit staff to accommodate the request; lack of work for the employee during the periods he or she proposes to work; and planned structural changes. The Department may make regulations to add reasons to this list. An employer could refuse part of a request for one of the reasons above. This could mean that an employee requesting to undertake two courses may have only one approved.
New Article 95D makes provision about regulations under Article 95C(4) specifying the manner in which an application is to be handled. Such regulations must include provision for the employee to be accompanied to relevant meetings, such meetings to be postponed where the companion is unavailable, rights to paid time off to act as a companion, the potential consequences of a breach of these requirements, and the circumstances in which an application is to be treated as withdrawn.
Where an employer agrees or agrees in part to a request, an employee is required under new Article 95E to inform his or her employer if he or she does not start or ceases to attend the agreed study or training. The employee also needs to tell the employer if he or she takes on study or training differing from that which was agreed. Regulations made by the Department under this Article may specify how an employee should inform the employer of any changes in the training.
New Article 95F makes provision for an employee to complain to an industrial tribunal where the employer has failed to comply with the duties concerning the consideration of a request (including procedural requirements) or where the employer’s decision to refuse a request, or part of it, was based on incorrect facts. A tribunal complaint (unless the tribunal exercises its discretion to grant an extension) must be made within three months of either an employer notifying an employee, following an appeal, of the decision to refuse a request, or (in certain kinds of cases specified by the Department) from the point where the employer is alleged to have failed to comply with a duty. Paragraph (4) excludes employees from complaining to tribunals under Article 95F in relation to the right to be accompanied at meetings if regulations under Article 95D make provision about such complaints instead.
New Article 95G provides that an industrial tribunal, where it finds the applicant’s complaint well-founded, must make a declaration to that effect and may require the employer to reconsider the request. It may also make an award of compensation. The limit on the number of weeks’ pay which a tribunal may award as compensation will be specified by the Department in regulations.
New Article 70F of the 1996 Order, inserted by paragraph 5 of Part 2 of Schedule 3, ensures that an employee has a right not to be subjected to any detriment by his or her employer as a result of making, or proposing to make, a request, or submitting a complaint to an industrial tribunal under Article 95F, or alleging circumstances that would justify such a claim.
New Article 135D of the 1996 Order, inserted by paragraph 7 of Part 2 of Schedule 3, ensures that an employee will be able to claim unfair dismissal if the reason for the dismissal is that the employee made, or proposed to make, a request for time to train or submitted a claim to an industrial tribunal under Article 95F, or alleged circumstances that would justify such a claim.
Clause 16 repeals the provisions set out in Schedule 4. The repeals are consequential upon the earlier provisions of the Bill.
Clause 17 specifies that the provisions contained in the Bill shall come into operation in accordance with an order or orders made by the Department for Employment and Learning. Any order made by the Department in this regard may contain appropriate transitional or saving provisions.
Clause 18 provides for the short title by which the Bill, once enacted, will be known.
8 Option Consideration
The Department considered three options in all:
The Department considered whether existing arrangements could be retained without modification[17]. This option was discounted as it immediately became clear from engagement with stakeholders and responses to the public consultation that retaining the status quo would be unhelpful.
The Department next examined the possibility of simply replicating GB reforms which culminated in the Employment Act 2008. In GB, from April 2009, all aspects (disciplinary, dismissal and grievance) of the statutory regime for resolving workplace disputes were repealed. Disputes are now being handled on the basis of an ACAS code of practice. Although there was some support for similar approaches in Northern Ireland, straightforward replication of the GB arrangements was quickly ruled out on the basis that the majority of stakeholders favoured a bespoke solution that addressed local needs and circumstances.
The content of the Bill was arrived at on the basis of policy decisions taken in light of the outcome of an extensive public consultation process. The rationale for the decisions is set out in the Department’s policy response to the consultation which was published on 14 April 2010.
The Department considered three alternatives to the introduction of a right to request time to train[18]:
The first was to do nothing at all. The Department already has in place a significant programme of work to support and encourage employers and individual citizens to invest in training and development. However, this option was ruled out as whilst existing programmes will assist many in acquiring skills and qualifications, there remains a potential gap in those sections of the workforce where there is not a culture conducive to training and development. This means that there is a group of employees who wish to undertake training but who do not feel sufficiently empowered to do so. Doing nothing would also put these employees at a disadvantage vis à vis their counterparts in the rest of the United Kingdom.
A second option considered was a voluntary, good practice and guidance-led approach. The Department could have run an advertising campaign designed to encourage employees to approach their employer with requests for time to undertake training and employers to give requests serious consideration. The Department concluded, however, that take-up would be less than under a statutory regime. In setting down clear rules about non-compliance employees will be encouraged to bring forward requests and employers will be minded to give proper consideration to any requests for time to train.
In light of the generally positive response that the right to request time to train has received from stakeholders, the Department believes that its introduction is the most appropriate way forward.
9 Costs[19]
Workplace dispute resolution
Repeal of the statutory grievance procedures will result in savings of around £25,000 per annum to the Office of Industrial Tribunals and the Fair Employment Tribunal as a result of the reduced complexity of claims and pre-acceptance procedures.
The increased emphasis on pre-claim conciliation should generate savings of around £11,000 per annum for Government due to greater numbers of disputes being resolved without the need for a tribunal hearing.
The introduction of a more straightforward procedure for the resolution of simple claims should save Government £10,000 per annum in tribunal resources.
The right to request time to train will cost Government some £6.7 million per annum in respect of tuition at levels 2 and 3 arising from successful requests.
10 Human Rights Issues
The provisions in the Bill are not deemed to have implications for human rights.
11 Equality Impact Assessment[20]
From an equality perspective, taken as a whole, the proposals will have modest positive benefits for all of the groupings listed in section 75 of the Northern Ireland Act 1998 in the sense that they will open up opportunities for resolving workplace disputes in a more constructive and efficient manner. However, an equality impact assessment carried out by the Department for Employment and Learning has identified that some of the policy proposals will generate greater benefits for particular groups[21].
Single parents (predominantly women), who due to family commitments and their less favourable economic position do not have time or resources for lengthy or complex legal processes; individuals with disabilities, and in particular mental health disabilities associated with or exacerbated by stress; racial, ethnic, national or religious groups employed as migrant workers whose first language is not English; and persons bringing a tribunal claim relating to their sexual orientation or to political or religious discrimination, will all benefit from enhanced information and advice, access to a wider range of ADR services, and modifications to tribunal processes. Whilst impacts are considered to be positive, they are considered to be of a relatively minor nature.
Modest positive equality impacts are anticipated as a result of the introduction of the right to request time to train. A number of groups will benefit from this right[22], including:
The consultation document states that:
No differential impacts have been identified in relation to any of the other Section 75 categories, namely religious belief, political opinion, racial group, sexual orientation and disability.
The list of respondents to the consultation is provided below.
The list of respondents to the consultation is provided below.
[1] Department for Employment and Learning Resolving Disputes http://www.delni.gov.uk/index/er/resolvingdisputes.htm (first accessed 15th June 2010)
[2] Department for Employment and Learning Employment (No 2) Bill Explanatory and Financial Memorandum
[3] Ibid
[4] Ibid
[5] Department for Employment and Learning Resolving Disputes http://www.delni.gov.uk/index/er/resolvingdisputes.htm (first accessed 15th June 2010)
[6] Northern Ireland Executive June 2009 Consultation launched on workplace dispute resolution http://www.northernireland.gov.uk/news/news-del/news-del-june-2009/news-del-010609-consultation-launched-on.htm (first accessed 15th June 2010)
[7] Department of Employment and Learning Dispute Resolution Review Consultation http://www.delni.gov.uk/index/consultation-zone/archived-consultations/archived-consultations-2009/dispute-resolution-review-consultation.htm (first accessed 11th June 2010)
[8] Based on discussions with DEL representatives, the final draft of the post consultation report is at the time of writing awaiting final approval from the Minister for Employment and Learning.
[9] A full copy of the questions and responses can be found at http://www.delni.gov.uk/index/consultation-zone/archived-consultations/archived-consultations-2009/dispute-resolution-review-consultation.htm
[10] Department for Employment and Learning Draft Final Response to Consultation Document – please note this document is in draft format only as the final copy has not yet been approved by the Minister for Employment and Learning
[11] Better dispute resolution: a review of employment dispute resolution in Great Britain’ (or ‘the Gibbons Report’),
[12] Department for Employment and Learning Disputes in the Workplace – A systems review Public Consultation http://www.delni.gov.uk/disputes_in_the_workplace__a_systems_review_-_public_consultation.pdf (first accessed 14th June 2010)
[13] Department of Employment and Learning July 2009 Flexible Working and Time to Train http://www.delni.gov.uk/index/consultation-zone/archived-consultations/archived-consultations-2009/flexible-working-time-to-train.htm (First accessed 11/06/2010)
[14] Department for Employment and Learning Employment (No 2) Bill Explanatory and Financial Memorandum
[15] Ibid
[16] Department of Employment and Learning Employment (No 2) Bill Explanatory and Financial Memorandum, NIA Bill
[17] Department for Employment and Learning Employment (No 2) Bill Explanatory and Financial Memorandum
[18] Ibid
[19] Ibid
[20] Ibid
[21] Department for Employment and Learning Employment (No 2) Bill Explanatory and Financial Memorandum
[22] Department of Employment and Learning July 2009 Flexible Working and Time to Train http://www.delni.gov.uk/index/consultation-zone/archived-consultations/archived-consultations-2009/flexible-working-time-to-train.htm (First accessed 11/06/2010)
[23] Ibid
[24] Ibid
June Ingram Department for Employment and Learning
Tom Evans Department for Employment and Learning
Alan Scott Department for Employment and Learning
Liz Griffiths Law Centre NI
Karen Mercer Law Centre NI
Daire Murphy Law Centre NI
Bill Patterson Labour Relations Agency
Jim McCusker Labour Relations Agency
Penny Holloway Labour Relations Agency
Gordon Parkes Labour Relations Agency
2. 12 November 2008 – Presentation by DEL officials to the Committee
3. 14 January 2009 – Labour Relations Agency response to the DEL Review
4. 4 March 2009 – Law Centre NI briefing paper to the Committee.
5. 25 March 2009 – CBI response to the Committee’s Review of Workplace Dispute Resolution procedures.
6. 25 March 2009 – Equality Commission for Northern Ireland briefing to the Committee on its Review.
9. September 2009 – Law Centre NI response to DEL consultation
13. 1 July 2010 – Public notice inviting submissions to the Committee
14. 8 September 2010 –Motion to extend the Committee stage of the Bill
15. 8 September 2010 - Briefing from DEL officials on the individual clauses of the Bill.
16. 3 November 2010 – Briefing paper from the Law Centre NI
17. 10 November 2010 – Briefing paper from the Labour Relations Agency
Department for Employment and Learning
– 12 November 2008
The purpose of this paper is to provide the Committee with some background to the dispute resolution arrangements that currently exist in Northern Ireland and to outline progress with the current dispute resolution review.
At the Committee meeting on the 12 November DEL officials will provide more detail on the preparations for the public consultation, expand on the key issues emerging from the pre-consultation process and map out a potential agenda for change.
LABOUR RELATIONS AGENCY
- 14 JANUARY 2009
The LRA (the Agency) was established in 1976. The general statutory duty of the Agency is to promote the improvement of industrial relations in Northern Ireland (NI) through facilitating good employment practice and resolving industrial disputes.
The LRA promotes good employment practice through the following:
The LRA resolves employment disputes through the following:
The DEL review follows on from a similar review undertaken by Michael Gibbons in Great Britain (GB). The Agency sees the DEL review as an opportunity for the NI Assembly to introduce employment law, arrangements and provisions that are responsive to the unique circumstances of NI:
Over recent months the Agency Board has been conducting its own review of the dispute resolution processes and has decided to support the following:
The Agency awaits the issue of the DEL formal consultation papers before coming to a final position on other key issues such as giving claimant’s access to the Tribunal process through the LRA helpline and abolishing fixed periods for conciliation.
In a recent GB study of the economic contribution of ACAS, which provides similar services as the Agency, it was found that the benefit cost ratio of ACAS handing individual employment rights claims was a net benefit of 6.4, that is, each pound spent produced £6.4 benefit to the GB economy. For the ACAS telephone helpline the benefit ratio was 53.1 and for collective conciliation 98.8. The overall net benefit ratio for all the ACAS services covered in the study was 16.1.
In a recent study reported by the Chartered Institute for Personnel and Development (CIPD) it was estimated that an individual rights case taken through the Tribunals would on average cost up to £250,000 whist the same case conciliated through ACAS would on average cost up to £9,000.
It is notable that of the 4,000 individual rights cases received by the LRA each year more than 80% do not proceed to a Tribunal hearing. The Agency’s independence and neutrality is held in high regard by all sections of industry. It is anticipated that additional resources will be required if the Agency is to maintain continuous improvement in dispute resolution particularly in light of the potential changes likely to follow from the DEL review.
Given the complexity of the above and the fact that the DEL formal consultation papers have yet to be issued the Agency requests a further meeting with the DEL Committee in order to inform the Committee of the Agency’s final position on the review.
Law Centre (NI)
February 2009
Law Centre®
1.1 Law Centre (NI) welcomes the opportunity to give evidence on this topic to the committee. In our evidence we identify those areas where our experience suggests the current system works well, those areas that work less well and the problems the forthcoming consultation could address
1.2 We would accept that the current grievance procedure is overly complex and in need of reform. There are compelling reasons, however, for the retention of the statutory disciplinary process in Northern Ireland. Principal among these is that the process is simple and generally well understood by the majority of employers. For employees it incorporates the basic principles of natural justice that anyone facing serious disciplinary action or dismissal might expect. Northern Ireland has a significantly higher proportion of small businesses relative to the rest of Britain for whom the statutory disciplinary procedure provides welcome clarity as to their legal obligations in this area. We feel that a change to the disciplinary process could create uncertainty and would require extensive publicity and education for employers in particular.
2.1 Law Centre (NI) supports the review of the statutory dispute resolution procedures, as certain aspects have led to considerable difficulties for both claimants and respondents. However we believe that it would be a mistake to limit options in the forthcoming consultation to rejection or endorsement of the procedures as a whole.
2.2 The statutory disciplinary and dismissal procedure and the statutory grievance procedure are distinct in scope and operation and each should be considered individually and addressed in separate consultation questions.
2.3 The statutory grievance procedure is complicated, time-consuming and legalistic and confuses employers, employees and legal representatives. There is a strong case for its removal.
2.4 On the other hand, the statutory disciplinary and dismissal procedure is simple, easily understood, and provides welcome clarity for both employer and employee. There is a strong case for its retention.
2.5 We argue that the retention of the statutory dismissal procedure actually benefits small employers as a class. This is particularly applicable in Northern Ireland, as we have a much higher proportion of small employers in this jurisdiction than elsewhere in the UK. Small businesses are much less likely to have set disciplinary procedures of their own, but awareness of clear statutory procedures would enable them to offer employees basic procedural fairness, avoid dismissals based on incomplete or incorrect facts, and reduce the possibility that they might be held liable for unfair dismissal.
3.1 Law Centre (NI) strongly supports exploring the options of ADR for certain employment disputes (while recognising that it will not be appropriate in all cases). The benefits of ADR include the following:
I. it provides a less confrontational and more positive means of resolving disputes (which is particularly valuable where an employment relationship is continuing);
II. it is less formal and more accessible than the Tribunal route which means that unrepresented claimants have a better chance of successfully pursuing a claim;
III. some forms of ADR may allow for a more flexible remedy/resolution than available from a Tribunal;
IV. it is generally speedier and less costly than the Tribunal route.
3.2 While arbitration is clearly part of ADR, we suggest it may be appropriate for it to be considered it separately from conciliation, mediation and early neutral evaluation. Arbitration is an alternative to the Tribunal route and results in a decision which is binding on the parties whereas the other forms of ADR precede or run parallel to Tribunal proceedings and are non-binding (conciliation becomes binding at the behest of the parties)
4.1 Reform of the system for resolving employment disputes should keep the issue of the access to rights of the individual at the forefront. Our experience is that the system deters many individuals with valid claims from pursuing their cases. We are concerned that the high numbers of settlements and withdrawals of cases are due largely to the built-in barriers within the system. The barriers include: the adversarial nature of the Industrial Tribunal; the lack of partial advice; the legal complexity of the Tribunal process; the high cost of representation; the way the system appears to favour the represented parties who are more likely to be legally represented, which in the majority of cases, is the employer and the measures taken by respondents’ legal representatives, such as costs threats and delaying action.
4.2 One significant barrier to justice is the policy focus on vexatious litigation. We would accept there will always be vexatious cases; our experience is that the number is very small. For this reason, we feel using this issue as a main driver of policy, rather than aiming to increase the number of meritorious cases being taken to completion, acts as a barrier to accessing justice and is an inappropriate driver of policy. Many meritorious claims are not brought to hearing, are abandoned, or are settled for a reduced sum due to the lack of proper representation. This should be a stronger driver of policy. We also believe that with increased provision of advice to workers at an early stage would help prevent disputes from escalating and would facilitate early resolution. The need for such early dispute resolution is more pressing in the current economic downturn.
4.3 Any measures that address the symptoms without tackling the fundamental problem are cosmetic and likely to be ineffective. They also have the effect of making it even more difficult for genuine claims to be successfully resolved. Northern Ireland has the opportunity for taking both the best of the current system and the best of the changes from Britain to fashion a system for resolving employment rights disputes that meets the needs of Northern Ireland and allows greater access to justice for individuals while still improving the efficacy of the system.
1. CBI Northern Ireland welcomes the opportunity to participate in the review by the Committee for Employment and Learning of workplace dispute resolution.
2. The CBI is the UK’s leading business organisation, speaking for some 240,000 businesses which together employ around a third of the private sector workforce. No other UK organisation represents as many major employers, small and medium-sized firms or companies in the manufacturing and service sectors.
3. The CBI recognises that the principal aim behind the introduction of the statutory dispute resolution procedures in Northern Ireland in 2005 was to encourage companies and employees to settle disagreements through internal grievance and disciplinary procedures and reduce the reliance on employment tribunals.
4. However, in practice there is some evidence that the regulations have failed to achieve this objective and a range of problems have been experienced. Employers have been faced with an elevation of procedure over substance and an overformalisation of disputes, and it may often be unclear whether an employee has actually raised a grievance. In addition, the procedures do not distinguish between different types of dismissals and this significantly complicates the operation of the regulations. The CBI therefore believes that there is at least an argument for repealing the regulations.
5. Our view is that resolving individual disputes in the workplace promotes good employee relations and any procedures for dealing with them must follow the principles of fairness and consistency. If the regulations were to be repealed, new guidance on the formal procedures would be required. This should focus on key principles and offer simple procedures which all employers can follow. Employees must of course have access to industrial tribunals where they feel that their legitimate claims have not been resolved adequately, but it is also essential to ensure that the tribunals system deals effectively with weak and vexatious claims which bring the system into disrepute.
6. CBI members have raised various concerns about how the statutory dispute resolution procedures have been operating in practice. These include:
7. The CBI will be responding in detail to the consultation on the review of workplace dispute resolution which we understand is due to be issued by the Department for Employment and Learning around the end of this month, and we will be consulting our members on the wider issues with which it will deal, such as the current systems for resolving disputes, the options for changing these, alternative dispute resolution and legal remedies and appeals, particularly how industrial tribunals are currently conducted and the need for an Employment Appeals Tribunal. However, our general policy is that unless there is a convincing argument that enacting different provisions would benefit our economy, Northern Ireland employment legislation should follow that of Great Britain.
19 March 2009
THE EQUALITY COMMISSION FOR NORTHERN IRELAND – 25 MARCH 2009
The Equality Commission for Northern Ireland (the Commission) is an independent public body established under the Northern Ireland Act 1998. The Commission is responsible for implementing the legislation on age, fair employment and treatment, sex discrimination and equal pay, race relations, sexual orientation and disability. The Commission’s remit also includes overseeing the statutory duties on public authorities to promote equality of opportunity and good relations under Section 75 of the Northern Ireland Act 1998 and the disability duties under the Disability Discrimination Act 1995.
Bob Collins, Chief Commissioner of the Equality Commission
Eileen Lavery, Head of Strategic Enforcement who represents the Equality Commission on the Statutory Dispute Resolution Steering Group.
1. The Commission has welcomed the opportunity to be involved in the present review of the Statutory Dispute Resolution system.
2. In the pre consultation on resolving workplace disputes the Equality Commission commented that alternative dispute resolution (ADR) if applied effectively in discrimination disputes can result in early, less costly and more informal resolution of complaints with meaningful outcomes. In certain types of cases, an informal system of dispute resolution may be more effective and appropriate and individuals may benefit from the private nature of the outcomes. However, it also recognized that there are cases in which it is necessary to establish precedents in both law and practice and the Equality Commission has a continuing role in assisting cases of strategic importance to its corporate objectives.
3. Each year the Equality Commission provides advice to some 3,000 individuals who believe they have been the victim of unlawful discrimination; the vast majority (80%) of the enquiries are about employment matters. Our advice in the first instance is focused on facilitating the enquirer to resolve the issue informally. Where such informal resolution is not possible we subsequently provide advice in relation to the lodgment of formal proceedings. We select a number of cases each year to assist with the pursuit of such proceedings. The Commission has a strategic approach to litigation and complainant assistance, as set out in our Policy for the Provision of Legal Advice and Assistance. Our staff have considerable experience in assisting individual clients to exercise their legal right to non discrimination and to obtain appropriate remedies. Two recent surveys, one in relation to those to whom we provide initial advice and a second of those to whom we have provided legal assistance, record that Equality Commission help is greatly valued and the achieved outcomes have been considered satisfactory.
4. The Equality Commission will enter into negotiations to settle a case prior to hearing if it is in the interests of the assisted claimant and the Commission to do so. The Commission will seek appropriate compensation and additional clauses such as a commitment to equality issues or respondent agreement to liaise with the Commission regarding equality policies, practices and procedures, implementing such changes as are recommended. Such agreed action, over and above compensation, is of benefit both to the complainant, where s/he has remained in employment, and the wider workforce in the employment. It is also of significance in helping the Commission to fulfil its statutory remit in respect of working towards the elimination of unlawful discrimination.
5. The majority of cases which we assist are concluded by way of negotiated compromise settlements and only a small number proceed to determination in the Industrial or Fair Employment Tribunals, and very occasionally in the higher courts. In the year 2007/08, we resolved a total of 103 discrimination cases supported by us. Of these, 90 were settled before reaching a court hearing. A further 13 were determined in a court or tribunal. The Commission agrees that in most instances achieving a resolution between the parties at an early stage is preferable but nevertheless we will always seek to retain a role in supporting cases where the law is uncertain and where a ruling by a tribunal or court can clarify the law.
6. The role of the Industrial Tribunals and the Fair Employment Tribunal in addressing discriminatory practice has been of considerable significance in Northern Ireland. Tribunal decisions have provided individuals with a declaration of their legal rights and have also provided employers with clear examples of discriminatory practice and so assisted the improvement of employment practice generally.
7. The Equality Commission agrees that the arrangements in respect of dispute resolution should encourage such resolution at the lowest possible level, that is, ideally within the employment relationship. However there is at present and will continue to be a role for Tribunals in the resolution of disputes and this is particularly so where an individual’s rights under anti discrimination legislation has been infringed. Any reform of alternative resolution processes must ensure that discrimination rights are not diluted. A revised system must not limit or deny access to justice. Importantly too vulnerable applicants must receive the same level of protection which would be expected in the judicial process.
8. In terms of informal resolution the Committee will be aware that in Northern Ireland the statutory requirement for a three step process (written statement, meeting and appeal), continues, although this statutory requirement will come to an end in Great Britain from 6 April 2009. There have been concerns expressed that, here in Northern Ireland as in Great Britain, the statutory requirement to follow the three step process too quickly moves the parties to formality and diminishes the opportunities for informal resolution. Further, the complexity has been increased for individuals in discrimination cases who have had to deal both with SDR and the procedural requirements attaching to the particular discrimination ground or grounds. There have nevertheless been certain advantages arising from SDR; in many disputes lodged with Tribunals in the area of discrimination the SDR process has provided to complainants early sight of the respondent’s defence. Such information has allowed complainants, and the Equality Commission in cases in which support was sought, to make a more informed decision about progression.
9. A revised Code of Practice on Discipline and Grievance, has been prepared by ACAS for use in Great Britain once the Statutory Dispute Resolution procedures cease in April this year. It is intended that this guidance, while reducing the formality of SDR, will nevertheless provide parties to a dispute with a clear procedure to assist informal resolution. While we recognize the advantages of informality we are strongly of the view that, given the complexity and seriousness of some discrimination complaints, an effective system of guidance to replace SDR is required. It is important that all employers have arrangements, rules and procedures which are consistently and fairly followed.
10. To date the work of the Steering Group has included the pre consultation work and information gathering from professionals, reviews of other jurisdictions and discussions with stakeholders. This early work has led to the identification of certain key principles for a revised system. These include the promotion of good employment relations and the provision of strong employment rights. The principles also include effective mechanisms to resolve disputes and to enhance capacity of all those involved in the prevention and resolution of workplace disputes. We welcome in particular this commitment to measures to encourage employers to develop their skills to deal with dispute resolution effectively. Indeed, we ourselves are heavily involved in such capacity building. We commit significant resources to advising employers on how to avoid discrimination and promote equality of opportunity. We make available to employers a range of advisory and guidance materials including a Model Equal Opportunities Policy, which employers can modify to suit their own requirements. We have recently drawn together the main elements of our employment guidance across all discrimination strands into a Unified Guide for Employers. This was discussed with employers in a targeted consultation and as warmly received. We provide an annual programme of employer training covering the full range of equality areas. We have a dedicated Employer Enquiry Line where employers may contact the Commission to obtain confidential advice. This Enquiry Line is promoted generally among employers as well as more specifically among key groups such as the Federation of Small Business (FSB). We also work in partnership with FSB, Enterprise Agencies, LRA and Invest NI, targeting start up businesses, in relation to the promotion of good equality practice.
11. Furthermore in relation to individuals who have rights under the equality legislation in addition to our role of providing advice to individuals we prepare and promulgate materials for claimants on resolving disputes.
12. The present review will also consider options to improve further the Tribunal system. The President of OITFET has already implemented a series of actions to reduce the time from case lodgement to hearing and the ECNI along with other users has welcomed the opportunity to be involved in the revisions. Further matters including the option of the establishment of a single Equality Tribunal and the potential for an appeal tribunal will also be considered as part of the forthcoming consultation.
13. The Equality Commission has welcomed the opportunity to be involved in the Steering Group and to contribute thus far. We look forward to the consultation and subsequent design of systems which reflect the specific needs of Northern Ireland and which provide for the promotion of good employment relations and strong employment rights.
The Department for Employment and Learning (‘the Department’), in February 2008, undertook a policy review of statutory employment dispute resolution procedures prompted by stakeholder concerns of the existing arrangements and by the findings of the Gibbons Review – “Better Dispute Resolution - A review of employment dispute resolution in Great Britain" – published in March 2007.
In May 2008 Sir Reg Empey, Minister for Employment and Learning (‘the Minister’), agreed to the establishment of a steering group tasked with assisting in the development and oversight of meaningful public consultation on key issues around the resolution of employment disputes. In October 2008 the Department for Employment and Learning (“the Department") published its report on the findings of the pre-consultation.
The Committee for Employment and Learning (“the Committee") welcomes the opportunity to progress this extremely important and necessary policy area in conjunction with the Department, both pre- and post-consultation, and feels that a coordinated approach to addressing the issues will best serve the needs of employers and employees alike.
The objective of the Committee’s review is therefore:
“To collate and consider the opinions and views of relevant stakeholder organisations on a way forward for workplace dispute resolution in Northern Ireland".
In meeting this objective, the Committee received briefings from Departmental officials and also took evidence from a range of key stakeholders.
Based on the evidence received, and taking on board the views of Members, the Committee feels that there is a need to develop and promote a culture of early dispute resolution as opposed to seeking legal redress through the tribunal system as the most appropriate approach.
The Committee agreed that there is a need to reform the current statutory procedures, but would emphasise the importance of ensuring that the revised system is properly thought through and represents a synergy of the best of the current system with the best of the options for change, to develop a system that meets our needs for resolving workplace disputes while allowing greater access to justice and improved efficiency. The new system should ensure the protecting of the rights of individuals and employers, and their access to justice.
The Committee agreed fully with those who gave evidence that ADR should be promoted as the most appropriate alternative to tribunals in order to protect the privacy of those involved and so ensure the pursuit of a faster, flexible and more cost effective means of settling a grievance, especially given the current economic climate.
The Committee agreed with a number of witnesses who stated that the role of the Labour Relations Agency (LRA) should be extended to cover a wider range of advice and ADR services and that there is a need for the refocusing the LRA’s resources in order to provide such extended services.
The Committee also agreed with those witnesses who identified the importance of the tribunal system, but also took on board the concerns that employers and employees have around that system.
The Committee feels that there is a need to ensure that dispute resolution is made simpler and less bureaucratic for both employer and employee and that a revised system does not simply replace one set of complex and confusing rules and regulations with another that are not user-friendly.
The Committee strongly believes that the provision of more accessible information and the promotion of a clearer understanding of employer and employee rights and obligations, by all those involved, are key to the success of any revised system. Lack of accurate information and clear instructions for those participating in the current structures was a recurring theme raised by all of those who gave evidence and this is an issue that needs to be addressed in order for the revised system to be meaningful.
The Committee is of the opinion that the public sector plays an extremely important role in the process, firstly, by ensuring that it leads the way in developing best practice models and, secondly, leading by example through implementing these models.
54. Based on the evidence received, and taking on board the views of Members, the Committee would be in agreement with witnesses that there is a need to develop and promote a culture of early dispute resolution as opposed to seeking legal redress through the tribunal system as the most appropriate approach. Much work will be needed to change this current mindset.
55. The Committee agreed that there is a need to reform the current statutory procedures, but would emphasise the importance of ensuring that the revised system is properly thought through and represents a synergy of the best of the current system with the best of the options for change, to develop a system that meets our needs for resolving workplace disputes while allowing greater access to justice and improved efficiency. The current three-step system should be repealed and a more appropriate system put in place that removes the apparent flaw that leads to earlier formalisation of complaints, as outlined by a number of witnesses. The new system should ensure the protection of the rights of individuals and employers, and their access to justice.
56. The Committee agreed fully with those who gave evidence that ADR should be promoted as the most appropriate alternative to tribunals in order to protect the privacy of those involved and so ensure the pursuit of a faster, flexible and more cost effective means of settling a grievance especially given the current economic climate. It was also agreed that a system should be put in place that identifies the most appropriate method of ADR on a case-by-case basis to ensure the best possible outcome.
57. The Committee saw the benefits, and heard the drawbacks, of implementing a Rights Commissioner system and feels that further investigation and evaluation is needed before such as system might be adopted.
58. The Committee agreed with a number of witnesses who stated that the role of the Labour Relations Agency should be extended to cover a wider range of advice and ADR services and that there is a need for the refocusing of the LRA’s resources in order to provide such extended services.
59. The Committee also agreed with those witnesses who identified the importance of the tribunal system, but also took on board the concerns that employers and employees have around that system.
60. Irrespective of what form the revised system takes, the Committee feels that there is a need to ensure that it makes dispute resolution simpler and less bureaucratic for both employer and employee and that it does not simply replace one set of complex and confusing rules and regulations with another that are not user-friendly.
61. The Committee strongly believes that the provision of more accessible information and the promotion of a clearer understanding of employer and employee rights and obligations by all those involved are key to the success of any revised system. Lack of accurate information and clear instructions for those participating in the current structures was a recurring theme raised by all of those who gave evidence and this is an issue that needs to be addressed in order for the revised system to be meaningful.
62. The Committee is of the opinion that the public sector plays an extremely important role in the process by, firstly, ensuring that it leads the way in developing best practice models and, secondly, by leading by example through implementing these models.
[September 2009]
1. DEL’s consultation on resolving employment disputes sought views on the retention of the statutory dismissal and grievance procedures and on reform of the framework for resolving workplace disputes.
2. Law Centre (NI) favours the retention of the statutory dismissal procedure which offers clarity and certainty to workers and employers alike. The “three step" procedure is now well understood by employers and does not impose a particularly onerous burden on employers; it simply sets out the minimum procedural fairness that should be applied in a dismissal situation. Conversely, Law Centre recommends the revocation of the statutory grievance procedure which is unduly burdensome and complex and which acts as a bar on access to justice for claimants. An alternative to the current statutory grievance procedure should be a Code of Practice.
3. In relation to reform of the overarching framework for resolving workplace disputes we propose reform that harnesses the strengths of the existing structure and utilises existing resources.
4. The fundamental flaw at the heart of the current system for resolving employment disputes is that many claimants do not benefit from personalised advice at an early stage in the process and representation where necessary. Legal Aid is not available and the legal costs involved in instructing a solicitor are usually prohibitive. Other sources of assistance and representation are extremely limited. Most claimants are left to negotiate the tribunal system without advice or representation and are thus at a significant disadvantage compared to represented parties. This impedes access to justice for employees and workers.
5. The current large body of employment law is very complicated and not susceptible to easy simplification. There will therefore always be a need to have a tribunal in which to bring and resolve complex or contentious legal claims. The tribunal is not, however, best suited to the quick disposal of straightforward cases.
6. We recommend a way forward resolving employment disputes that does two things:
(a) makes better provision of personalised advice for and provides access to representation; and
(b) provides easier, simpler and more accessible fora and techniques to resolve disputes – and ensures they are used.
These steps, we believe, will significantly enhance access to justice for claimants; ensure the system is quicker, simpler and fairer for all parties and, in the long term reduce some of the costs associated with the current system
7. Figure 1 at Annex A illustrates our model and the following explains how this framework would work in practice. Our key proposals are explained below by reference to the different stages for resolving an employment dispute.
8. Pre-Claim Stage
What is needed at this stage is access to early advice and intervention as follows:
(a) provision of information about employment law and rights through existing routes e.g. LRA, CAB, etc;
(b) increased emphasis on early conciliation (particularly pre-claim conciliation) and other alternative dispute resolution (ADR) techniques utilising the existing resources and procedures offered by the LRA;
(c) wider availability of personalised and professional advice through the expansion or provision of a funded advice service.
Better advice at an early stage combined with the availability of ADR would result in significantly more cases resolving at an early stage.
9. Pre-Tribunal Stage
A twin-track approach that delivers quicker and more informal systems to deal with cases going forward to tribunal is needed at this stage. We recommend that this can be achieved by a filtering system that allocates claims for pre-tribunal adjudication or early neutral evaluation.
10. Filtering Mechanism
All claims submitted to the tribunal should go through a filter stage where a tribunal chairman decides whether the claim is suitable for the Employment Adjudicator (see below) or Early Neutral Evaluation. The filter process would be a paper based exercise. It would not create an undue burden on Tribunal chairmen as they are already required to do initial vetting on some claims. Further, in the new system we propose we anticipate that the overall level of tribunal hearings would be reduced, thus freeing up chairmen for this type of work.
11. Employment Adjudicators
Straightforward claims would be resolved by a system of pre-tribunal adjudication. Employment Adjudicators could be people with a background in industrial relations, human resources or employment law. They do not necessarily need to be legally qualified. Employment Adjudicators could be drawn from the current LRA panel of arbitrators supplemented by panel members from the tribunal. Employment Adjudicator hearings would be short and inquisitorial. Parties would have a full right of appeal to the tribunal if they are not happy with the Adjudicator’s decision. To reduce the risk of parties raising unmeritorious appeals, the tribunal should have the power to penalise a party who has behaved unreasonably/vexatiously in appealing a decision either through costs or adjustment of the award. The process could be administered through a separate division of the LRA (in a similar manner to how the arbitration scheme is currently administered).
12. If the Employment Adjudicator model were accepted, we recommend abolition of the current statutory arbitration scheme.
13. Early Neutral Evaluation
More complex cases would go forward to Early Neutral Evaluation (ENE) conducted by a tribunal chairman. Parties would appear before the chairman in a short hearing also on an inquisitorial basis. The chairman would be tasked with quickly isolating the central issues in the dispute and giving an evaluation on the likely outcome of a full tribunal hearing. Such evaluation would include an estimation of likely damages. Parties would remain free to avail of LRA conciliation or mediation to resolve the case.
14. In effect, ENE would build on existing practice in the tribunal system by replacing the current Case Management Discussion hearing with a process better focused on promoting resolution of the claim. It would harness the expertise of chairmen and require minimum training for them.
15. To reduce the risk of parties simply ignoring the recommendation of ENE, the tribunal should have the power to penalise a party who has behaved unreasonably in pursuing a case to tribunal. If the tribunal’s decision is in line with the ENE evaluation and the tribunal considers a party to have acted unreasonably/vexatiously in ignoring the evaluation, the party could be penalised by way of costs or adjustment of the award.
16. Some cases will not be suitable for resolution through ENE. In such case the chairman could indicate that the issues need to be tested and determined before a full tribunal. In these cases ENE has the added benefit of allowing the chairman to issue case management directions and orders to prepare the matter for an expeditious hearing.
17. Tribunal Stage
Increased access to representation is needed at this stage. Wider access to representation to assist meritorious cases that do have to proceed to tribunal would facilitate increased levels of settlement and the more efficient running of cases. This would save on tribunal costs. This could be achieved either by:-
(i) limited extension of Legal Aid to cover employment law, with an appropriate test for assistance to allow resources to be targeted; and/or
(ii) allocation of increased resources to expand or establish free representation services for tribunal cases (with the option of building on the voluntary sector structures that already exist).
18. The net result of the above proposals would be to steadily whittle down the number of disputes, through early resolution, acceptance of adjudication or evaluation, and pre-trial settlement so that only the few that require full Industrial Tribunal hearing actually reach that stage.
19. Post-tribunal the Law Centre strongly advocates the simplification of enforcement of tribunal awards. The procedure for enforcing an award is lengthy and costly. We recommend that the burden of enforcement should be removed from the claimant and transferred to the state in the interests of protecting the integrity of the tribunal system. Alternatively, the current system should be simplified by removing the need for County Court order and reducing or removing claimant fees at the Enforcement of Judgments Office.
20. Finally, the Law Centre recommends the establishment of an Employment Appeal Tribunal to ensure the tribunal benefits from precedent where the law differs from that in GB and to eliminate the need for costly appeals to the Court of Appeal as is the current arrangement in Northern Ireland.
21. In the model we have developed we have sought to incorporate the existing structures that we believe can be built on and adapted to create a more coherent and efficient system without incurring the cost that a radical departure would entail. The expertise and experience that exist can be utilised. The bones of a new system are already there and can form the basis of a new interagency approach that is fairer for all.
Law Centre (NI) works to promote social justice. We provide specialist legal services to advice organisations and disadvantaged individuals through our advice line and our casework services from our two regional offices. We provide specialist legal services in five areas of law: employment law, immigration, community care, mental health and social security. The Employment Unit provides employment law advice to advice agencies and to workers and provides representation in strategic cases and for workers in situations of vulnerability.
For more information about this paper, contact the Employment or Policy Unit on 028 90 244401.
Employment Relations Policy and
Legislation Branch
Room 213, Adelaide House
39-49 Adelaide Street
BELFAST BT2 8FD
Tel: 028 902 57520
Fax: 028 902 57555
Tom.Evans@delni.gov.uk
Sue Ramsey, MLA, Chairperson
Committee for Employment and Learning
Northern Ireland Assembly
Room 283, Parliament Buildings
Stormont
Belfast BT4 3SW 9th February 2010
Many thanks for your letter of 20 January 2010 following the oral briefing which Alan Scott and I provided to the Committee on the key policy proposals emerging from the review of workplace disputes.
At the end of that meeting you indicated that the Committee would want to have the opportunity for a more detailed consideration of the draft proposals before they have been signed off by the Executive. A draft Executive paper has now issued to Executive Ministers seeking their views on the range of policy proposals that we shared with the Committee on 20 January. Our Minister has also asked that the Committee be consulted on the draft policy proposals which should be treated as confidential.
Executive Ministers have been given a very tight deadline for response so that an agreed Executive paper can be tabled at an Executive meeting in late February. This would allow for a Bill to be published by end of March in time for a planned introduction in May 2010. For this reason an early response from the Committee would be most appreciated.
The Department looks forward to a continuing engagement with the Committee on this important policy area. We are available to meet at the Committee’s convenience if you feel a further meeting is required at this stage.
I will continue to liaise with your Committee staff in consultation with the DALO, Mark McConville.
Yours sincerely
The Northern Ireland Assembly Committee for Employment & Learning is commencing the Committee Stage of the both the Student Loan (Amendment) Bill and the Employment (No.2) Bill.
The Student Loan (Amendment) Bill proposes to exclude student loan repayment from Individual Voluntary Arrangements with respect to rescheduling debt. Information regarding the Student Loan (Amendment) Bill can be obtained from the Assembly website:
http://archive.niassembly.gov.uk/legislation/primary/2009/nia22_09.htm
The Employment (No.2) Bill proposes to make changes to the way workplace dispute resolution is dealt with and to introduce “time to train", allowing workers to take time off work to train. Information regarding the Employment (No.2) Bill can be obtained from the Assembly website:
http://archive.niassembly.gov.uk/legislation/primary/2009/nia24_09.htm
Individuals or organisations with an interest in these Bills are invited to submit evidence, preferably by e-mail (in the format MS Word), to the address below.
Submissions must be received no later than 5pm on Thursday 12th August 2010 and should be structured to address specific clauses of the Bill. If a submission deals with both Bills this must be made clear.
If you do not have access to the internet or e-mail facilities or you have any other enquiries, please contact:
Clerk to the Committee for Employment & Learning, Room 245, Parliament Buildings, Ballymiscaw, Stormont, Belfast, BT4 3XX.
Tel: 028 9052 0379.
E-mail address: cel@niassembly.gov.uk
Committee for Employment and Learning
Room 245
Parliament Buildings
Tel: +44 (0)28 9052 0379
Fax: +44 (0)28 9052 1433
To: Loretta Gordon, Clerk to the Business Committee
From: Peter Hall, Clerk to the Employment and Learning Committee
Date: 8th September 2010
Loretta,
I am writing to advise you that the Committee for Employment and Learning, at its meeting on 8th September 2010, agreed the attached motion to extend the time to consider the Employment (No.2) Bill in accordance with Standing Order 33 (4). You will note that the motion has been signed by Dolores Kelly MLA, Chairperson of the Committee for Employment and Learning.
The Committee would be grateful if the Business Committee would consider scheduling the motion at the next available plenary session as the Committee Stage of the Bill is currently timetabled to end on 4th October 2010.
Regards
Committee Clerk
cc: Fiona Stanley, Departmental Assembly Liaison Officer, Department for Employment and Learning
Motion:
Extension of Committee Stage - Employment (No.2) Bill (NIA 24/09)
“The Committee for Employment and Learning proposes that, in accordance with Standing Order 33 (4), the Committee Stage referred to in Standing Order 33 (2) be extended to 2nd December 2010 with respect to the Employment (No.2) Bill (NIA 24/09)".
Chairperson, Committee for Employment and Learning
prepared for Departmental evidence session before Employment and Learning Committee
8 September 2010
Clause 17 provides for commencement of the provisions in the Bill, on dates to be specified in orders made by my Department.
The Department is empowered to commence the provisions on the Bill on days it may appoint and to make transitional provisions.
The Law Centre is a public interest non-governmental legal organisation that aims to promote social justice. Two specialist Employment Advisers provide advice and representation for employees. We receive referrals from and provide advice to agencies across the voluntary sector, the Labour Relations Agency and constituency offices. In addition to providing casework services, we aim to increase understanding of employment rights through training events and publications.
The Law Centre has participated throughout DEL’s review of dispute resolution to highlight our concerns that the current system includes many barriers to justice for employment claimants.
The Employment (No.2) Bill introduces 18 clauses dealing with a number of issues. We will address the Committee on a number of the Bill’s provisions that we welcome:
The Bill is part of the jigsaw for reforming the system of resolving employment disputes. A number of the proposed measures are positive developments. However, our concern is that they do not necessarily mesh together to produce a strategic reform that will ensure a fair and coherent system. Therefore we have identified a number of questions which will be addressed by the Law Centre’s presentation.
Good quality information is essential as ignorance creates problems in employment disputes. The Department proposes the establishment of an inter-agency advice forum and an ‘information gateway’ to signpost employers and employees to the appropriate resource. It also provides for an expanded LRA service and this is welcomed.
Critical issues are:
The result of the consultation has placed much emphasis on Alternative Dispute Resolution (ADR) techniques. ADR techniques aim to prevent, reduce and resolve disputes through non legalistic avenues. The Law Centre fully supports the policy aim of seeking to resolve more employment claims through ADR techniques. However, while supportive of the aim, we are mindful that there will always be a need to have a tribunal in which to bring certain legal claims. Critical issues are:
The Department has undertaken a comprehensive review of dispute resolution that really focuses on local needs. However, there is still much further work to do to ensure that the dispute resolution process is fair and accessible and that it provides effective and timely outcomes for all those who use the system.
We believe that the Committee has an important role in keeping the new framework and the overall effectiveness of the dispute resolution system under review. This role is particularly important in light of current proposed reforms of the justice system.
[1] The DEL response recognises that there is a demand for two discrete forms of assistance: neutral assistance and tailored advice. We are concerned that this recognition is not translated into proposals. See DEL Policy response to Disputes in the workplace: a systems review, para.2.4.
The general duty of the LRA (the Agency) is to promote the improvement of industrial relations in Northern Ireland (NI) through facilitating good employment practice and resolving industrial disputes. In relation to dispute resolution Agency officers can be called to act as conciliators and /or mediators when invited by the employers and workers involved in an industrial dispute. The services are confidential and impartial. Any agreement reached is the responsibility of the parties. Agency officers do not recommend or impose settlements. In addition the Agency offers Advisory Services through a telephone Helpline and the provision of workshops and seminars for small firms on good employment practice. The Agency’s services are held in high regard by the social partners and employment relations stakeholders.
In relation to the DEL Policy Proposals on the reform of the resolution of employment disputes and in particular the proposed Employment (No. 2) Bill the Agency makes the following points:
Under Clauses 8 and 12 of the Bill it is proposed to reduce the Agency’s capacity to conciliate pre-claims from a duty to a power (Pre-claim conciliation relates to the settlement of cases that could go to tribunal but have, as yet, not been submitted). It is argued that this will enable the Agency to exercise greater discretion in offering its assistance to resolve disputes. This is ultimately a resourcing question.
The DEL Review Policy Proposals support the promotion of pre-claim conciliation as does the Agency. Currently the Agency has a specific duty to conciliate pre-claim cases. The Agency, having a specific duty to conciliate pre-claims, is currently on very strong grounds in seeking additional resources to deal with an increase in pre-claim cases particularly where DEL and the Agency are and will be actively promoting pre-claim conciliation.
The Agency is strongly of the view that Clauses 8 and 12 significantly reduce the grounds on which resources could be secured to effectively deal with the DEL Policy Proposals on promoting pre-claim conciliation. It is the view of the Agency that Clauses 8 and 12 should be withdrawn from the Employment Bill.
In response to the DEL Review of Dispute Resolution the Agency proposed that an appeal on the arbitrator’s award be allowed as part of an extended statutory arbitration scheme. The appeal would be to the Industrial Court. The Employment Bill extends the statutory arbitration scheme from three jurisdictions to all relevant employment jurisdictions but does not provide for an appeal on the arbitrator’s award.
The current statutory arbitration scheme does provide for an appeal on grounds of a breach of Human Rights and /or European Community legislation. It also provides for appeal on grounds of the fundamental perversion of the procedure. Appeals are heard by the Court of Appeal. It is the view of the Agency that these, very high level grounds, frustrate the use of statutory arbitration.
Over recent months some employers, trades union representatives and employment lawyers have expressed a preference for an appeal. The view is taken that an appeal against the arbitrator’s award on grounds of fairness would facilitate greater use of statutory arbitration as opposed to submitting a claim to Tribunal.
In addition the proposal to allow an appeal to the Industrial Court provides for a non- adversarial means of coming to a resolution. This is fully in line with the principles of the DEL Review in relying on legal remedies only as a last resort.
The argument against such an appeal is that it would create an unnecessary layer of bureaucracy and weaken the finality of the arbitrator’s determination. The argument for the appeal is that it will increase access to justice and will be significantly more attractive to the parties to a dispute and therefore will actually allow statutory arbitration to become a useful vehicle for resolving disputes.
In New Zealand, where the parties are unable to resolve a workplace problem and the matter is referred to the Employment Relations Authority for a decision, the Authority must first consider whether an attempt has been made to resolve the matter by the use of mediation. The Authority can direct that mediation or further mediation be used before a case is dealt with unless such direction would mitigate the resolution of a case. The parties must comply in good faith with such a direction. The Agency is of the view that Tribunals in Northern Ireland should be empowered to enquire at the case management stage if ADR has been used and if not ask for the reason for not using ADR.
Agency staff and arbitrators have statutory protection in relation to the confidentiality of certain ADR processes including being compelled to be witnesses at Tribunal proceedings. The Agency welcomes confirmation of this by DEL. In addition the Agency welcomes the fact that DEL is
pursuing the same confidentiality protections for all Agency ADR activity. The Agency is of the view that the widening of such protections to all ADR activity is a vital element in sustaining the credibility of the Agency ADR services. It is noted that should this not be achieved the DEL objective of promoting early resolution of workplace disputes could be compromised.
In 2009/10 the Agency received 16,318 individual rights claims (of which 9140 were NICS sex discrimination and equal pay claims) and dealt with 53,871Helpline enquires. Agency resources continue to be pressed. It is anticipated that owing to the recession and the pending public sector cuts the demand for Agency service will increase. Resourcing for the Agency will remain a matter of strategic importance.
