Neither employers nor employee representatives believe that laws on employees rights and offering dispute resolution mechanisms work as well as they should.
Many an employer believes that there is too much legislation on employment rights and that the legal or conciliation machinery is tortuous and can be expensive. Many an employee representative could suggest steps to make the legislation more effective and would look for speedier dispute resolution methods.
Avoiding a referral to an Industrial Tribunal is a strong motivation.
Sir Reg Empey, Minister for Employment and Learning, earlier this year launched a consultation on a series of options for change.
The replies are currently being reviewed. Early in 2010 his proposals will be finalised and, if needed, new legislation drafted. Outside the Minister's Department, two of the main practitioners dealing with employment disputes are the Labour Relations Agency (LRA) and the Office of Industrial Tribunals. Other 'players' include the Equality Commission, trade unions, employers' organisations and some sections of the legal professions.
The debate about mechanisms to resolve employment disputes is wide ranging. Over the years, legislation has become more complex and must now adapt to national and EU-wide directives as well as being aware of the emerging human rights dimensions.
When Government creates machinery for dispute resolution, the risks are of complexity, delay and more litigious attitudes.
Ask employers and employee representatives what they would hope to change: their answer would be greater simplicity, speedier answers and more clarity in decision making.
Core message to the Minister: simplify and clarify.
The LRA has published its definitive response to the options on offer. Its critical starting point is stark: 'a fundamental flaw in the (current) statutory procedures is that they impose a 'one size fits all' approach ... '
Less reliance on statutory guidelines and greater efficiency are their twin objectives. To replace the statutory procedures, an LRA Code of Practice 'articulating fundamental principles of fairness in workplace procedures' would be prepared.
Aligned with these objectives, the LRA suggests a more active role for the agency in several developments.
These would include moving from acting simply as a source of information to being ready to act in an advisory role when consulted.
A further suggestion from the LRA is that it should offer a more flexible and comprehensive alternative dispute resolution (ADR) system for workplace claims and disputes.
One feature of a broader ADR system is a proposal that the LRA should set up a group of specialists ready to act as Employment Commissioners.
Much of the logic of these proposals is that there is currently too little opportunity or effort to solve workplace related disputes in ways that avoid the extended and formal reliance on referrals to industrial tribunals.
Better advice at an early stage would avoid time wasted on unjustified claims; better conciliation and ADR would find more informal amicable settlements: effective Employment Commissioners might avoid the formality of a tribunal hearing.
Although the LRA does not explicitly criticise the role and operations of industrial tribunals, implicit to its recommendations is the conclusion that the industrial tribunals system has become formal, too time consuming and essentially legalistic in motivation. The LRA would commend a more informal, quicker and problem-solving approach.
The LRA already operates as a possible intermediary between people taking claims to an industrial tribunal and the employers. A less formal opportunity to 'settle' before going into a tribunal can be helpful.
The LRA is asking that, when a claim to a tribunal is lodged, the agency should receive that claim and have a period of eight weeks to meet the parties concerned (an official requirement on each of them) and to offer conciliation or ADR (as a voluntary engagement).
The novel feature of the LRA proposal is that, before a claim goes to an industrial tribunal, there might be (what is termed) an early neutral evaluation of a claim.
This neutral evaluation might be an outcome of conciliation or ADR. Alternatively, the claim might be referred to an Employment Commissioner.
The expectation is that the finding of the Employment Commissioner would be binding but there would be provision for an appeal to the industrial court.
In this type of system, the rules might require that a claim referred to an Employment Commissioner would not then be accepted by a tribunal.
The creation of Employment Commissioners would ease the current bottleneck of delays in waiting for a tribunal hearing. Whether or not these Commissioners should be experienced specialists in human relations questions is one option. The alternative is that Commissioners might be qualified in legal expertise. If Commissioners are to be legally qualified, then the danger is that this would recreate a tribunal structure.
Can the social partners support a system that avoids formal legal structures and relies on problem solving mechanisms based on an understanding of legal obligations? Whilst they would not have a veto on change, there could be an expectation that the lawyers heavily involved in tribunals would resist a change that, either in principle or practice, erodes their role.