Unhappy workplace relations between employers and employees are now much less frequent than a generation ago.
That does not mean that all the problems have disappeared. Every year, in Northern Ireland, about 4,000 claims are listed for industrial tribunals (IT). |Each case that goes to a full hearing represents extensive preparation and, frequently, briefing of legal representatives.
Not every claim to a tribunal moves to a full hearing. Of about 4,000 claims each year, after preliminary conciliation, 30% to 40% will be withdrawn, 30% to 40% will be settled before a hearing and 10% to 20% will be contested in a formal hearing. There is a shared benefit if the ‘journey’ for an unhappy employee can be shortened with a quicker determination of the merits and with less adversarial tension.
The Department of Employment and Learning has finished a wide-ranging consultation on methods to reduce the impact of employee disputes starting in the workplace.
Bill Patterson, chief executive of the Labour Relations Agency (LRA), generally welcomes the series of proposed changes.
“The proposals go a long way to enhance the development of alternative dispute resolution (ADR) techniques and avoid so many claims going to tribunals.”
In an important legislative |decision affecting dispute procedures, the existing (but unsatisfactory) legislation on statutory
procedures relating to employee grievances will be repealed in Northern Ireland, as it has been in Britain. However Northern Ireland, unlike Britain, will retain the statutory procedures for dismissals and discipline.
These statutory procedures have been heavily criticised as making the handling of disputes more vulnerable to procedural flaws and detract from the core of the issues in disputes.
The formal focus for unresolved disputes is ultimately a reference to a tribunal. To get answers before that stage, the LRA offers a range of professional services and information in several forms. It provides, free of charge, to employees and employers:
- Information on statutory rights and obligations
- Conciliation services to facilitate agreed solutions
- Mediation and arbitration mechanisms where this is mutually agreed by the parties.
Government is asking the LRA to put more emphasis on the use of ADR mechanisms to end disputes without recourse to an IT. The search is for better agreed interventions before a tribunal hearing.
Under the current system, an employee registers a claim with the IT office.
Details of the claim are passed to an LRA officer who has an opportunity to assess the scope for a conciliated outcome. The suggested improvement in the arrangements is that the LRA should be more active by becoming involved (where possible) before a claim is submitted to an IT and should offer a broader agenda of ADR outcomes for the people involved before a hearing.
There are constraints on the possible role of ADR. First, should there be an obligation on both parties to co-operate in ADR efforts? Second, if the parties agree to seek an independent opinion through arbitration, should that involve a waiver of the right to a tribunal hearing?
The Government has stopped short of proposing any waiver of rights. The door is left open for a tribunal to be told about efforts to reach a settlement and to take that into account in the tribunal conclusions. The trade union suggestion was that an extra procedure might be introduced where a rights commissioner would adjudicate and any finding could be appealed. Government rejected this idea and sees it as an integral part of better ADR mechanisms.
If dispute resolution is to be successful, ADR techniques must be developed and the network between agencies must be more cohesive. Government has agreed there will be a new inter-agency employment relations forum to improve understanding of stakeholders’ interests. The LRA will have an independent role to provide information and professional expertise on conciliation, mediation and arbitration services using ADR techniques.