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Michael Samson and John Fletcher consider what the impact of new employment legislation will be on local authorities. The new Employment Act 2008 which became law in April, and the reformulated ACAS code of practice which followed it, reflect an increased statutory emphasis on using alternative dispute resolution (ADR) in the workplace to reduce cases going to employment tribunals: ‘Employers and employees should always seek to resolve disciplinary and grievance issues in the workplace'; and, ‘where this is not possible, [they] should consider using an independent third party to help resolve the problem'. This brings the workplace in line with the sea change in legal procedure generally which, since the Woolfe reforms of the 1990s, has seen an increasing emphasis on early settlement, transparency and the use of mediation. There is now likely to be enormous pressure on employers to use ADR wherever possible to reflect the spirit of the new legislation. What is the effect of the new legislation on councils likely to be?: * unreasonable failure to comply with the code could result in the upward adjustment of a tribunal award by up to 25%. Councils will need to ensure that internal workplace procedures follow the code * although procedures for handling grievances and disciplinary cases will not apply to redundancies and non-renewal of fixed-term contracts, the code applies to all grievance and disciplinary situations, including misconduct and poor performance. Grievances are ‘concerns, problems or complaints the employees raise with their employers.' The code is, therefore, wide. If there was a claim for discrimination, where an employee had breached the diversity legislation, the council could well be brought into the proceedings. Having sufficient training in the use of workplace mediation for employees becomes imperative * there is likely to be a significant correlation with member issues. The use of ADR, such as mediation, in councillor/councillor/officer/public relationships is already in place under the member code of conduct. Councils would be wise to have a general mediation protocol in place * decisions to dismiss should only be taken by managers with authority to do so, under precise terms of delegation. Councils should ensure that such terms are clearly drawn up and understood by staff. How will the changes affect councils' dispute resolution procedures?: * the policy reflected in the code is to remove disputes from employment tribunals. Council employers would be wise to consider offering mediation or conciliation to employees, as one step in the process. In not having a protocol, the employer may be open to criticism for unreasonable conduct, certainly in grievance and disciplinary cases and workplace disputes. What financial arrangements should councils consider taking? There needs to be a sufficient budget to meet the cost of conflict resolution in the workplace, in order to minimise cases reaching employment tribunals. With the emphasis on ADR, councils need to be proactive – anticipating potential difficulties, rather than funding employment tribunal cases. How will mediation function in the workplace? Councils should: * accept the legislative obligations with an agreed conflict resolution scheme, endorsed at cabinet level * adopt guidelines identifying cases where ADR is appropriate. A suitable protocol will contain on the types of cases; exchange of information; confidentiality; and the manner of agreeing settlements * encourage employee and union acceptance of procedures, ensuring mutual awareness of the legislation and creating a spirit of understanding. Identifying cases which should be subject to ADR could be difficult – would an equal pay case lend itself to being mediated? The answer is that it probably would, if the issues were discussed at an early stage of job evaluation. A conscious raising of awareness is needed to refer appropriate cases to mediation, before totally entrenched positions are taken. A sample action plan for implementation by legal services managers: 1) Notify the cabinet and the council of the requirements and effects of the new legislation and of the ACAS code of practice, and establish a training and awareness programme. 2) Amend the workplace disciplinary and grievance procedures and consider carefully the category of cases covered. 3) Ensure managers are sufficiently empowered to take disciplinary and grievance cases under their terms of delegation. 4) Prepare a mediation protocol to comply with the amended procedures. 5) Draw up flow charts of the amended procedures and ensure staff and union awareness. Michael Samson is legal services manager at Lincolnshire CC, and John Fletcher is project director at ADR Group

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WHITEHALL

Alternative approach to employment law

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