Resolving disputes in the workplace
Published in Bottomline, Spring 2007
This article is a summary of our data from the full report of our findings entitled ‘Dispute Resolution’. If you would like a copy of the full report please contact us on 0161 839 3882 to order a free copy.
The enactment of the Employment Act 2002 (Dispute Resolution) Regulations 2004 gives workers more rights and sets out the procedures which should be followed in the workplace in order for grievances to be pursued. However, nationally the number of employment tribunal applications has not decreased since 2004. In 2005/06 there were 115,039 registered applications to an Employment Tribunal. This represents an increase of 34% from 2004/05 when 86,181 applications were registered. These statistics raise serious concerns about the effectiveness of this legislation.
In 2006, Greater Manchester Pay and Employment Rights Advice Service (GMPERAS) began a research project aiming to explore employees’ experiences of pursuing a grievance against their employer. Specifically. We were interested in determining whether the Employment Act 2002 (Dispute Resolution) Regulations 2004 was successful in facilitating the resolution of grievances in the workplace. We gathered data via questionnaire from workers who had contacted GMPERAS’ advice line regarding grievance issues between October 2004 and March 2006.
Questionnaire
We have run a regular free and confidential advice line on employment rights since 1985. This provides daily contact with the least protected and most vulnerable workers. These are workers who are most in need of basic rights and who have had most to gain from the Employment Act 2002 (Dispute Resolution) Regulations 2004. The central concern of this research was to assess the experiences of this particular group of workers of the statutory grievance procedure, as well as considering whether they had been able to pursue and reach a resolution to their grievances.
Between October 2004 and March 2006 486 workers called the advice line with a grievance query and left contact details. These callers were contacted in May 2006 and asked to complete a short questionnaire about their experience of pursuing a grievance against their employer. In total, 103 completed questionnaires were returned.
Key findings
Information and compliance
Our data indicate that there is often little or no information provided to employees regarding their rights under the Dispute Resolution legislation. Indeed, only 15% of those workers who did make a formal grievance said that their employer informed them of a grievance procedure. This is despite employers being bound by law since the Employment Act 2002 (Dispute Resolution) Regulations 2004 came into force, to provide details of the grievance procedures to the employee in a written statement within two months of their start date with their employer. This clear lack of awareness of or perhaps indifference to, their statutory obligations by employers seems consistent with 46% of respondents believing their employers had not complied with the legislation.
Impact on employees
59% of workers who did not make a formal grievance against their employer said that they experienced harassment or had difficulties in following the procedures for making a grievance. Our data indicate that there is insufficient support and mediation available to workers for them to enforce their rights.
As might be expected, nearly three-quarters of workers said that they experienced negative feelings such as shock, anger or annoyance. 30% of workers said that the experience of making a grievance affected their health detrimentally. In the cases which were about bullying or discrimination 46% and 57% respectively said that their health was affected detrimentally.
Workers wrote:
I suffered depression through stress. I felt very unvalued and as if nobody at work cared. It also prevented me from getting a promotion.
Female, Administrator, aged 25-34, part-time
I had much stress pursuing my grievance and had to be given a sick note by my Doctor due to the pressure which also led to counselling as all my confidence and self-esteem were knocked. To this day I still have belongings at the workplace which I can not collect.
Female, Nursery Nurse, aged 25-34, full-time
Outcomes and procedures
Of the cases surveyed 43% were resolved in favour of the employee and 17% were resolved against the employee. The majority of other cases were either ongoing or not pursued.
23% of cases where a formal grievance was made went to Employment Tribunal. Approximately a third of these cases were resolved in favour of the employee and about a half were ongoing. Cases were more likely to go to Employment Tribunal when the modified procedure was followed i.e. after employment had been terminated. Although many grievances that followed the modified procedure were regarding redundancy, a significant number concerned wages owed. This may be because employers attempt to withhold monies from ex-employees.
Respondent Recommendations
When questioned regarding ways in which the grievance procedures could be improved, a wide variety of suggestions were made. These are summarised in Table 1. However, two key areas emerge as important. Firstly, 32% of workers said that more information about employment rights needs to be provided in the workplace.
Workers wrote:
I think all staff should be given all information regarding what rights they have at work and from when they apply (e.g. first day, 3 months) the employer should give the information out so they know that people know their rights and will use them against them if needed.
Female, Cleaner, aged 18-24, part-time.
Leaflets should be available within the workplace at reception, admin and in staff rooms. Training day at work where your organisation and others like yourself come in and give the updates on our rights. Advertising on Bill Boards nationwide.
Female, Play Worker, aged 45-54
Secondly, 65% of respondents said that an independent body is needed to either regulate employers and/or represent employees. This compares with 15% who said that grievances should be resolved in the workplace.
Workers wrote:
Independent arbitration and adjudication if possible not through high courts which may discourage or put off some people
Male, Solicitor, aged 35-44, full-time
Employment rights people should visit employers directly and follow progress. They should make routine visits to employers to make sure they comply with the rules.
Male, Caterer, aged 35-44, full-time
We need a third party that will make contact with the employer then return to the employee. It is hard to ring personnel on your own as they try to put you down. Having a skilled middle person would be beneficial to all. Most low paid fear solicitors.
Female, occupation not stated, 35-44, part-time
It should be part of the employers grievance procedure to amicably involve an independent third party to mediate.
Female, Ward Secretary, aged 35-44, full-time
The importance/benefits of being in a union should be promoted. I wasn’t in a union and it was too late to join when I had my issues.
Female, recruitment consultant, aged 25-34, full-time
A statutory right to employer/employee mediation by an independent body.
Male, Manager, aged 35-44, full-time
Table 1: How workers think their employment rights should be enforced
Conclusions and Recommendations
Two years after the implementation of the new regulations on dispute resolution the Government appointed Michael Gibbons as an independent reviewer which resulted in the Gibbons Review. In March 2007 the dti produced a consultation document in response to the Gibbons Review, ‘Success at Work’, which sets out three main options.
Option 1: Do nothing
Option 2: Repeal the statutory dispute resolution procedures and streamline employment tribunals
Option 3: As option 2 above, but also introducing a package of measures to promote effective dispute resolution including;
- Offering a new advice service
- Providing a new entry point for employment tribunal applications
- Providing a new approach to straightforward claims
- Making dispute resolution services available earlier in appropriate cases
- Removing fixed periods for Acas conciliation
Evidence from our advice line paints a complex picture. It is simply not the case that disputes at work are being resolved efficiently in the workplace. Rather, it seems that employers are often unwilling to comply with the Employment Act 2002 (Dispute Resolution) Regulations 2004. Our research reveals that there is a widespread lack of awareness of the responsibilities of employers towards their employees, and that many employees are not informed of even the minimum requirements of the statutory grievance procedure by their employer. Also, many employees are hindered from pursuing a grievance due to the resulting difficulties at work. In some cases workers are harassed in the workplace when they are attempting to enforce their rights at work.
The workers who responded to this survey expressed the need for more help with enforcing their rights. Many workers suggested this could be provided both through trade unions and also through the establishment of an independent body to which they could turn with employment problems. The existence of such a body would not only be of benefit to workers but also to employers who want to understand and provide basic standards at work. In addition it would reduce the increasing burden on tribunals. To ensure that workers can fully enjoy their new rights requires the introduction of new enforcement mechanisms.
Recommendations
We recommend option 3 as set out in ‘Success at Work’ March 2007 which would result in the statutory dispute resolution procedures being repealed and, a package of measures to promote effective dispute resolution introduced instead.
We would like to emphasise the importance of one of the recommended measures, namely that the Government should establish an advice service. Individuals are only able to exercise their rights if they are aware that their employer is in breach of the law. They need to know where to get information and advice if they experience a problem to do with their rights at work.
We would further recommend that:-
- The Government should undertake a publicity campaign to improve awareness of existing statutory rights.
- The Government should ensure that any publicity about new rights specifically targets temporary, agency, casual and young workers to emphasise their inclusion in employment rights.
- To ensure that all workers know of their basic rights the Government should provide written, clear and accessible information about statutory rights to every worker. This could take the form of a worker's handbook which could be distributed through employers. This could be done through the Inland Revenue as part of the yearly information provided to all employers.
- To improve workers' access to information about their rights, the Government should make increased use of public places to disseminate information about rights at work such as bill boards, libraries and public transport for example.
- The Government should require employers by law to display and have available to workers information about basic employment rights. This legal requirement to display information could be similar to minimum wage posters in the U.S.
Further, we believe that the Government should not only ensure that workers have access to information but also enable the enforcement of employment rights. We think that offering a new advice service is one step in the right direction, but that ultimately the problem can only be solved by the Government establishing new enforcement mechanisms in the form of a Labour or Employment Inspectorate. This Inspectorate would have the responsibility of ensuring that employers complied with all statutory individual employment rights. The Inspectorate should have the right to enter and inspect any workplace whilst maintaining the anonymity of workers and impose penalties in the case of non-compliance. We believe that such measures would have a significant impact on the number of claims lodged at Employment Tribunal.