COMMITTEE FOR EMPLOYMENT AND LEARNING

OFFICIAL REPORT

(Hansard)

Alternative Dispute Resolution

12 November 2008

Members present for all or part of the proceedings:
Ms Sue Ramsey (Chairperson)
Mr Robin Newton (Deputy Chairperson)
Mr Alex Attwood
Mr Paul Butler
Rev Dr Robert Coulter
Mr David Hilditch
Mr William Irwin
Ms Anna Lo
Mr David McClarty
Mrs Claire McGill

Witnesses:
Mrs June Ingram )
Mr Tom Evans ) Department for Employment and Learning

The Chairperson (Ms S Ramsey):

In this session, departmental officials will outline the background to dispute resolution. Members should be aware that the Department has released a pre-consultation paper to key stakeholders. Hansard will record the session because the Committee may decide to examine the issue in greater detail and, perhaps, conduct an inquiry or produce a report. Members must ensure that all mobile phones are switched off. I thank the officials for attending and providing a paper.

Mrs June Ingram (Department for Employment and Learning):

I thank the Committee for the opportunity to detail the current state of play and the Department’s proposals for progress on its alternative dispute resolution (ADR) review. Tom Evans will explain the process that is under way and illustrate the range and depth of the policy-development process. We have examined developments in GB, and we are considering which package is appropriate for Northern Ireland, which has its own structures, employment-relations culture and economic landscape.

The role of improved workplace relations in economic development is to help productivity, to reduce costs and to resolve disputes earlier, and our ideas are set within that economic context. Tom is chairman of the steering group for the consultation process.

Mr Tom Evans (Department for Employment and Learning):

I thank the Committee for inviting us. As the Chairperson mentioned, we provided a background paper. Furthermore, we provided a copy of our slides, and if the Committee is content, I intend to make a short presentation, which will last approximately 20 minutes, to outline the background, the current position and our vision for the future. I am happy to stop at any stage if members have any burning questions.

The Committee has several papers on the subject, and, therefore, I will outline some background information rather than give too much detail. I will discuss the pre-consultation process, and although there are no fixed views as yet, we are keen to share with the Committee the emerging issues arsing from that process. I will discuss the potential change agenda and some of the implementation projects that could arise from a public consultation in 2009.

The current statutory procedures were introduced in GB in 2004 and in Northern Ireland in 2005. When I took up my job, GB had already taken the decision to change the 2004 GB procedures before the ink had even dried on the Royal Assent document. Michael Gibbons was asked to conduct a review, which commenced at the end of 2006 and continued into 2007. The brief seemed to focus on a repeal of the statutory procedures. Thereafter, Gibbons recommended a repeal of the statutory procedures, and an Employment Bill, containing seven clauses — one of which will repeal the statutory procedures — is progressing through Westminster.

The Gibbons review did not cover Northern Ireland, which is why the Department took the decision to go through a more extensive pre-consultation process. As June said, it is a major policy, which covers every employer/employee relationship in Northern Ireland. Therefore, it is a macro policy, rather than a niche policy. The Department decided that it would go through a pre-consultation exercise, and, as the Chairperson said, members received the report on that. It covered the ground that the Gibbons review covered, and it ensured that the Northern Ireland system had an opportunity to comment.

The Department took a long time to go through the pre-consultation process, but it is probably better to take a measured approach and get a proper feel from the community. We went through the pre-consultation process from February to April 2008. The Minister established a consultation steering group, which is a different process, and it is made up of the Northern Ireland Committee of the Irish Congress of Trade Unions, the Federation of Small Businesses, the Confederation of British Industry, the Equality Commission, and the Labour Relations Agency, as the main deliverer of conciliation and alternative dispute resolution techniques and processes.

The steering group has met approximately six times, and its role is to oversee the consultation process and to bring to the Minister — probably in the next month or so — a consultation document that will form the basis of a public consultation. The group has received presentations from a range of experts, including officials from our counterparts, the Department for Business, Enterprise and Regulatory Reform. I frequently get that title wrong — it was formerly known as the DTI, and it was always easier to say. The officials talked about developments and about how the process was moving forward.

The steering group also received a presentation from the Labour Relations Commission in the Republic of Ireland. It was represented by the chief executive who was accompanied by a rights commissioner, as a rights commissioner system operates in the South of Ireland. We also had a presentation from Professor Paul Teague from the school of management in Queen’s University. Paul is well regarded for his work on international models of best practice in employment conflict resolution. I am being careful to put the word “employment” in front of the words “conflict resolution”. We also had a fine presentation from the Labour Relations Agency on best practice, as there is no need to reinvent the wheel.

We met with a range of key stakeholders. We issued a consultation to the usual suspects — the consultation stakeholders — but we conducted face-to-face meetings with every stakeholder who wished to meet us. In fact, we were proactive in encouraging them to meet with us.

We also established user panels, because this is very much a practice issue. There is a lot of anecdotal evidence to suggest that some procedures are working and some are not. Therefore, we established user panels, which were made up of representatives of the voluntary sector and the trade unions, as well as employment lawyers and HR professionals. That proved to be hugely beneficial. The Law Centre, which supports unrepresented employees who do not have a union and do not have the wherewithal, brought together a range of people from citizens advice offices around Northern Ireland and from other support and voluntary agencies. We ran a half-day workshop to examine the issues for people who support employees who have difficulties in the workplace.

We also had meetings with representatives from all the trade unions in Northern Ireland. We met with barristers and employment lawyers to find out their views, and that was a very useful exercise. They did not concentrate on their business, which is when cases get to the tribunal stage, but rather they considered the type of issues that would help to resolve disputes. They see the disputes at the other end, but, in fairness, they took their commercial hats off at that stage.

I am meeting with a range of HR professionals from the larger employers — that is, the public and private sector. Through contacts with the Labour Relations Agency, we tapped into some small employers, and into consultants who deal exclusively with small employers. That was a useful exercise, as they understand the pressures and struggle in delivering the employment law regulations.

We have audited existing good practice and have looked at international best practice. We have an ongoing research project that involves face-to-face interviews with 40 people who were claimants in an industrial tribunal or a fair employment case and representatives of 40 employers. It has been quite difficult to source people who are willing to participate — often, people who have been through a tribunal or case are not that happy to participate. Another problem is that people’s decision to participate can be influenced by the outcome of a tribunal. However, we are hoping to populate the consultation document with feedback from that research project.

June and I made a presentation to our departmental board, because it was important to ensure that the board understood the emerging issues and that we were not getting ahead of ourselves in relation to departmental objectives. There are statutory procedures, which can be retained, repealed in part or repealed in full. However, that will not be enough. There must be a cultural change in the way that employment relations are arranged in Northern Ireland; that is, the way that employees raise their grievances and how employers deal with those. That issue came out of the pre-consultation process very clearly.

There is an issue regarding whether there should be a rights-based system that recognises the position of employees and gives them ready access to the justice system or a system that focuses on promoting good employment relations. The steering group, which represents both employees and employers, has acted very corporately. That group believes that such systems are not mutually exclusive. There can be a system that allows people access to justice — whether that is justice in their own employment environment or recourse to an industrial or a fair employment tribunal — with work also being done to strengthen employment relations in Northern Ireland so that fewer disputes happen and, when they do, more are dealt with informally.

We are finding that employers in small businesses have a problem with employment regulations. In a small business, the employer is often the person who sweeps the floor, who registers with Companies House and who does all the other things, and they struggle with what they see as a range of very complicated procedures. The pre-consultation showed that there is a feeling that small businesses should not be exempt from their responsibilities under legislation, but that models of good practice should be available to help them to deliver on those responsibilities.

There is a question mark over the role of the public sector. The pre-consultation indicated that people felt that if central Government are introducing legislation, the public sector should try to have best practice. The departmental board has agreed that we should consider having a pilot scheme in our Department, which involves using softer techniques that are outside of the procedures. We are also going to try to run that pilot scheme in one or two public- and private-sector organisations.

A need remains for mechanisms that encourage early resolution of disputes. It is possible to take either the carrot or the stick approach — the pre-consultation has shown that people are in favour of having elements of both. Mechanisms for employers could include best-practice models, kite marking, and an accreditation system that includes benefits for accredited employers. Using the stick approach, if employers are not following sensible good practice and are not discharging their responsibilities to employees, the tribunal system can be used, with measures being taken dependent on the outcome of that.

When I started in this job, a very simple thing that I did was to visit the websites of a range of organisations. What does an employee with a dispute do? Good information has been produced by the Labour Relations Agency, Directgov, Citizens Advice, and the Department for Employment and Learning (DEL). All those publications are professional and accurate, but employees who are looking for information will tend to tap into one website, then into another, and will find themselves wondering which is correct.

The pre-consultation has shown that people agree that it may be helpful to have an inter-agency approach to information provision. That would involve providing one piece of information for employers that is a sign-posting document, with the logos of all the relevant organisations on it. Perhaps it could be launched at a nice event with the Minister and the Committee. That would seem to be a quick and easy way to assist people.

There is a need to change the culture in Northern Ireland by implementing good employment relations that will mean happy employers and fewer disputes. Disputes should be resolved early. The capabilities of managers, HR specialists, union reps and other people who are involved should be enhanced so that they are able to support employees and employers and resolve disputes. Professor Paul Teague from Queen’s University mentioned that as well. The Department for Employment and Learning is keen on that, because we have a skills agenda, and we are interested in developing some pilot arrangements.

Queen’s University is working with University College Dublin and the Irish Business and Employers Confederation to develop a Masters qualification in conflict resolution in an employment environment. Professor Paul Teague said that it could be adapted to develop an accredited modular approach. It would not be for the HR function only; in large organisations, it would be good personal development for middle managers. Those are the people who deal often with grievances as they arise. Sometimes by not handling those issues well, they escalate, and that is where the problems arise and parties divide. The important issue is the skills agenda and the early resolution of problems.

The Labour Relations Agency is the main deliverer of conciliation and alternative dispute-resolution processes, and it does a fine job. It uses conciliation, mediation and arbitration techniques. There are other mechanisms, such as early neutral evaluation. The question is: are we getting the right numbers? Arbitration is not used often, but it is more informal than the tribunal system.

The voluntary organisations informed us that they are aware of people who were nervous of the system and who did not have much money. The thought of going to a tribunal made some of those people withdraw their cases. However, they would have been more attracted by an independent, less legalistic process in which there was not any cross-examination. The lawyers said the same thing. Trade union colleagues wondered why we were consulting with the lawyers — ambulance chasing springs to mind — but the lawyers were professional, and we are keen to meet with them again.

There may be a need to review the focus of the Labour Relations Agency pre- and post-lodging of tribunal proceedings. There is a perception that the Labour Relations Agency deals with cases at tribunal stage, because there is an automatic default that the agency becomes involved when proceedings are lodged. Perhaps people are not aware that the Labour Relations Agency does a lot of good work pre-lodging of proceedings, and it needs to be promoted.

There is a paucity of research in employment relations in Northern Ireland. We get documents from GB — and that is fine — but Northern Ireland is different from other regions in the UK. Our economy is structured differently, and we have a higher dependency on public-sector jobs and small employers. That is coming out strongly. There is also a need to evaluate the effectiveness of the Office of Industrial Tribunals and the Fair Employment Tribunal and to link it with the work of the Labour Relations Agency. That is not to say that there is not evaluation, but it needs to be more structured, and it must capture the views of the various parties involved in a dispute as they go through the process.

The president of the Office of Industrial Tribunals and the Fair Employment Tribunal shared with us an evaluation of three non-industrial tribunals in Great Britain. We were informed of the research methodologies that are applied there, and that was helpful.

There is a need to review the rules and procedures in the tribunal system. My colleague Alan Scott was involved in developments over 2004 and 2005. Please do not ask me any questions about that, because it is a mystery to me. However, I will know more about it before we get to the end of the review.

There is a question of whether there is a need for a fair employment tribunal and an industrial tribunal, or whether one would be sufficient. Those questions must be asked. Through their work on a single equality Bill, the First Minister and the deputy First Minister have an interest in that issue. Any appeals to an industrial tribunal or a fair employment tribunal must go to the High Court. There is an employment appeals tribunal in England; the question is whether there should be an employment appeals tribunal in Northern Ireland. The steering group and others have said that a decision on whether to bolt on an extra layer must be based on knowledge of what the whole system will comprise.

We drew a pyramid to attempt to explain the change-agenda process. The contracts of employment of everyone in Northern Ireland are represented at the bottom of the pyramid. We want the consultation document to include questions on what needs to be done to strengthen employment relations. I have mentioned best-practice models and the need to enhance capability through the skills agenda. The ability of managers and union representatives is of key importance to the informal issues and mechanisms that can help with disputes.

Consideration must be given to how alternative dispute resolution can be used when a dispute becomes formal. In the public sector, little use is made of ADR, which is why pilot schemes are being considered. Great procedures are in place, but flesh must be put on their bones. When the employment relationship has broken down, organisations such as the Labour Relations Agency are used. Other private organisations are now using trained professional mediators in such a process, and the consultation will ask questions about that. Questions must also be asked on how a legal remedy can improve the appeal process.

Several implementation projects may arise from the review. I stress that those are only potential projects and that a public consultation would be required for those. We are keen to hear the Committee’s views. Any changes to the statutory procedures would require an employment Bill to come to the Assembly; no changes can be made without the Assembly’s approval. Primary legislation would be used to provide the enabling powers for a new mechanism, and the subordinate legislation would provide the flexibility to make changes, especially as one evaluates what works and what does not work.

The potential development of best-practice models for employment relations and the potential to introduce kite-marking arrangements could happen among the Department for Employment and Learning, the Department of Enterprise, Trade and Investment and the employer lead bodies. DEL has an explicit remit in the change agenda to develop modular-accredited training in alternative dispute resolution, and we are keen to work with Queen’s University and other bodies. The list of organisations with which we might work is not intended to be exhaustive; it is intended to provide a feel for the kinds of people who may be involved.

Following the Gibbons review, several pilot projects have been run in GB. It is sensible, therefore, to consider pilot projects in mediation and arbitration in order to find out whether that approach works well and to evaluate it. It is important to test the system.

Potentially, the work of the Labour Relations Agency, which is funded by DEL, may be realigned. That will depend on the outcome of the public consultation, the direction of the policy and the results of the pilot projects. As the spending Department, DEL will influence the way in which the Labour Relations Agency does its work. An evidence-based research agenda is needed, and a review of the tribunal rules must also be considered.

The Department has produced some indicative timescales for the way forward. We hope to produce a consultation document by the end of December 2008. Although the Minister does not regard that document as his Christmas present to the Committee, we will share it with members. After that, the document will be subject to ministerial and Executive approval, and in February 2009, it will go out for a 12-week public consultation. The Department hopes to produce its response to the public consultation document and to produce policy proposals before the summer. Those are only indicative timescales, and the Committee may want to get involved in those. Our presentation also asks the Committee how it wants to be involved.

The Chairperson:

Thank you, Tom. I now ask members to indicate whether they want to ask questions or make a comment, because today’s agenda contains a number of items and I want to keep the Committee running close to the anticipated timings. Robin and Alex have indicated that they wish to speak.

The Committee has been involved in a number of issues over the past few months. During the presentation, I thought about the further education lecturers’ pay dispute. If that method of dispute resolution came into being, would that resolve that pay dispute? We are being told that the British Treasury is responsible for the resolution of that dispute. The Minister, the further education lecturers and the colleges want the dispute, which is ongoing, to be resolved.

Mrs Ingram:

The further education lecturers’ dispute is operating under the current procedures. We want to consider whether the procedures could be improved to help to resolve disputes. I am not sure whether we would be able to resolve the further education dispute, but we can learn from what has happened.

Mr Evans:

If a dispute is over money — about what people believe that they are entitled to and when pay negotiations are needed — the procedures will not resolve it. However, they will improve the process of negotiation around that dispute. They will recommend that those negotiations happen earlier; that early warning systems are established; and that the employer side and the employee side are more reactive and responsive, and move to proper dialogue at an earlier stage. Employment relations and dispute resolutions are about early interventions through professional support.

The Chairperson:

I appreciate that, but I am conscious that we could be talking about nursing staff or further education lecturers. Many disputes that we face — or will soon face — are about pay. If the issue is out of our hands, where does it sit? That needs to be considered during the consultation.

Mrs Ingram:

That is a very good point.

Mr Evans:

The statistics indicate that several of those disputes involve tribunals. Some of those are collective disputes about pay or terms and conditions, and the Labour Relations Agency deals with those through its collective-conciliation processes. The problem is that there is a critical mass of individual disputes that must be dealt with. Those have resulted in serious operational costs.

The Chairperson:

I do not want to sound negative, because this is something in which the Committee wants to be involved and we mentioned that a few months ago. However, if we are reaching for the stars, we should reach for them all. There is no point in dealing with the smaller issues if the bigger issues will come and bite us.

You talked about the emerging issues and the need for an inter-agency approach to the provision of information. I assume that that information will be available in various languages, so that the maximum amount of people can access it. I have no doubt that there are many positive, proactive small businesses out there. It might not necessarily be their fault if they do not know about an issue before it becomes a dispute in the workplace. We need to be proactive and ensure that those small businesses get that information.

Last week in the Chamber, I raised the point that some people do not know their rights, and some business are not aware of those either. If changes are being made to the laws, we need to be careful that — rather than it becoming an issue — we provide people with a lot of information, because the difficulties are not caused by people misbehaving. The example of paternity leave regulations struck me when you were talking about that issue.

Mr Evans:

That is very helpful; because some very sensible measures could be taken that do not require major changes. If 100 people on the street were asked what the Labour Relations Agency is, they would not know. There needs to be a proactive approach to the provision of guidance and information.

Mr Newton:

This is a very timely and interesting piece of work. The Department may be aware that the Assembly has debated red tape and bureaucracy — particularly around small firms — and employment law and dispute resolutions fall into that.

I note the wise comment about the need to look to a bespoke solution that better reflects the structures of the local economy. If those are the driving thoughts, it is very good. At the end of the day, we cannot disadvantage either the employer or the employee. However, to follow the point that the Chairperson raised, if it is a major dispute — a college lecturers’ dispute — and if we decide that this is the way to go, will that fall within this remit, or will it be devoted only to the small and medium-sized enterprises in the economy?

Mr Evans:

This refers to every dispute in Northern Ireland, whether involving a collective, an individual, a small employer, a large employer, or an employee. It covers everything. There may be a need to consider a model for collective conciliation, and how dispute resolution and the appropriate agencies can work together.

Mr Attwood:

I agree with Robin that the discussion is timely and useful. I am very protective of the equality and employment architecture in the North. If it had not been for strong laws and strong enforcement over several decades, we would not have moved as quickly as we have — although not quickly enough — to the more equal society that we now have. For that reason, I would be cautious about going down the road of merging the Fair Employment Tribunal and the Industrial Tribunal. It is a fair and proper question to ask, but we are not yet in the situation where we can make the wider political and policy statement that would be inherent in answering that question positively.

Alternative dispute resolution is important, because my view of too many of the public authorities and bodies in the North is that when they get into a dispute with an employee, they want it to go to court. They know that the employee will run out of time, money and patience. It will end up with the public body having the advantage and not the individual employee with the grievance. There is no equality in that arrangement. I can give chapter and verse on the evidence to back that assessment. That is why I am interested in trying to develop alternative dispute resolution, which leads me to a question.

You say that there may be a need to roll out pilot schemes. Can you give us more detail? The issue has a big future, and I would like to hear how you see it being rolled out, in part to legislate against the situation where public bodies have the public money and think that they can spend the public money in an effort to defeat a grievance.

Mr Evans:

We have not developed our thinking on the implementation, bearing in mind that we have just completed the pre-consultation. However, you have put forward some good points. We brought the matter to our departmental board. Large public- and private-sector organisations have fantastically developed processes, and the criticism of GB, and our own, arrangements is that the process has overtaken the real objective, which is early resolution of disputes. If the process is followed, one is legally safe. We will look, in a low-cost way, to several Departments to see whether we can build in ADR techniques and problem-solving, and work with the unions on that issue. A departmental procedure or a public- or private-sector procedure can be changed. They are only a set of procedures.

What actually makes it work, and oils the wheels, is the collaboration between the employer and the employee in putting in place techniques so that, for example, if a relationship grievance arises, an independent person can be brought in to carry out a mediation process, instead of letting that grievance fester until it gets to the stage when it must be dealt with externally. Similarly, if someone has a grievance with their employer, they may have no trust in the internal appeal stage because they do not believe it to be independent and objective, as it is carried out by one line manager. The Department is considering the introduction of some pilot schemes to address those issues.

On the issue of small employers, there is a need to consider — along with the Federation of Small Businesses, our colleagues in the Department of Enterprise, Trade and Investment and Invest Northern Ireland, and with some small employers — the development of a standard handbook for small employers, which covers the basic employment rights. Often small employers do not have such a handbook because they are not aware of the need to have one. Even when they are aware of that, they do not know how they might go about compiling a handbook. There may be a need for some spoon-feeding, but the Federation of Small Businesses and other employer organisations will need to be consulted on the development of such a handbook. That is the sort of process that must be carried out, and we are keen, therefore, that the steering group remains operational, because it contains all the constituent organisations that would need to be consulted.

The point that was made about equality is correct; the Department must ask those relevant questions. When the Minister met with the steering group, the representative from the Equality Commission was quite forceful in reminding him of the role of the Fair Employment Tribunal and the Equality Commission. If the structures for dealing with employment disputes were not being actively considered, the Committee would probably argue that they should be considered. The Minister has no fixed agenda on this issue; he is very keen to stress that there will be no decision to simply adapt the models operative in the Republic of Ireland or GB. He is keen to implement a model that is good for business and good for employees.

Mrs Ingram:

In relation to the formal processes, one of the difficulties is a tension between the formal and informal processes. The formal process is there to protect people, but it can also deter people from taking any action. One of the problems with the statutory procedures is that, although they are there to provide protection, they can act as a deterrent.

Tom referred to pilot schemes in operation in GB that we wish to consider. I think that the Advisory, Conciliation and Arbitration Service is rolling out a pilot scheme that will provide increased helpline access, so that people can get more information about their rights and responsibilities. There is also a need to examine the judiciary’s role in meditation. When the proposals are opened to consultation, it is key that we hear the voices of small businesses and individuals. The Department wishes to develop processes to enable those voices to be heard. The input of the Committee is very welcome, because its members have an insight into the issues, and we really appreciate that.

The Chairperson:

For members’ information, the Committee is hearing this presentation today in order to make clear that it is keen to get involved with the Department on this issue. It gives us the opportunity and the time to raise some of the relevant issues, either during the pre-consultation stage, the consultation stage, or before any possible legislation is considered. It is on the forward work programme of the Committee, so the points that have been made are useful.

Mr Butler:

Did the Gibbons review repeal the statutory procedures in Britain? That is an issue that could cause a lot of contention, if statutory procedures are to be appealed or modified. Would that be the first stage of any legislative changes?

Mr Evans:

If the Bill is successfully enacted, it will repeal those statutory procedures. During the consultation process, we will ask whether people wish those procedures to be repealed, in part or in full, and, if so, what they believe will be the consequences of that, and what actions the Department will have to take. The fact that those procedures have been repealed in England does not necessarily mean that they will be repealed here.

Mr Butler:

I imagine that the steering group will hold different opinions about that, given that it includes employers and trade unions.

Mr Evans:

There is an interesting cross-section of views.

Mrs Ingram:

In GB, the aim is to create a new code of practice to bolster the role of the procedures and the good practice guidelines in the whole process. Although there are no longer three formal stages of statutory procedures that have to be followed, there will still be some kind of procedural impetus to achieve good practice.

The Chairperson:

OK, June and Tom, thank you for your presentation. It has been quite useful and it is something that the Committee has been keen to look at. I hope that you will take on board the points and recommendations that members have made. I am sure you will be back and forward over the next few months.

Mr Evans:

We will be very happy to keep the Committee involved if you think that that is helpful.

The Chairperson:

Not that this Committee has any disputes. This Committee is working collectively. Thank you.