The Role of Courts, Tribunals and Statutory Agencies - Essay Example

? Q. Critically evaluate the various roles of courts, tribunals and sta y agencies in regulating the employment relationship, in particular focusshould be given to the regulation by government policy, and if this provides an adequate balance of protection to both employers and employees. There is a need to strike an adequate balance between the employers and the employees of any organisation. To do this, a focus is given to the roles of courts, tribunals and statutory agencies with a particular focus on Employment Tribunal. This is followed by an analysis of current issues in employment and government regulation via its policies. The relevant legislations and acts regarding employment law are also looked at. This then proceeds to the statutory agencies, specifically on Acas, its roles and mandates. This shows the outline of the government policies over the years and in different reigns, an analysis of the recent issues in employment, the reforms at Employment Tribunal and the Beechcroft Report. This concludes by giving the recommendations and views of the balance that has been stricken between employers and employees. It seems that the legal tide in some perspectives is turning in favour of the United Kingdom’s employers. For instance, the move to introduce fees for taking a case to employment tribunals, reduction of the cap on compensation pay-outs for claims dismissed unfairly and making it easy for judges to terminate weak claims by workers are just some examples. These changes seem to represent a ‘real shift in the balance of power between employee and employer’ (Beechcroft Report 2011) Check references The business community, especially the employers’ have been very vocal in its criticism of excessive red tape. Furthermore, the British Chambers of Commerce argues that businesses have had to cope with relentless flow of regulation for the past few years at a cost of billions of pounds (British Chambers of Commerce Annual Review 2011). The Institute of Directors also have made several complaints about the Government’s habit of gold-plating employment directives and European businesses. The government, in an attempt to display its business friendly credentials, earlier this year consulted on changes to the employment tribunal system. The qualifying period for employees’ unfair dismissal rights was increased to two years up from one year. There was also the launch of Employers’ Charter. Despite the deregulatory tone of the agenda, the government has set out policy decisions on employment law that counter business opinions. Ministers have also been in consultation on proposals to lengthen right to request flexible working to employees to change existing rights to maternity leave all in favour of introduction of a more appropriate ‘parental leave’. An appropriate parental leave means that both parents are taken care of. As opposed to granting mothers permissions, a parental leave looks at all the dimensions. Here employees are given more protections such as if an employee works 3 days a week, one ‘week’ of parental leave equals 3 days. Likewise, if an employee works irregular weeks the number of days in a ‘week’ is the total number of days they work a year divided by 52. (Gov.UK, 2012). Court and tribunals serve as important forums where any employment disputes are settled. It is also vital to understand the sources of the employment law and the role of the relevant institutions that oversee the operation of that law. For example, a distressed union, employee or employer initially brings a claim in the County Court, High Court or Employment Tribunal. Whether an aggrieved party submits his claims in a tribunal or court all depends on the nature of the dispute. Claims concerning breach of contract, application for injunctions, wrongful dismissal are usually brought in the courts. Claims that involve discrimination, unfair dismissal, redundancy, equal pay, maternity rights and deduction of wages, are heard in the Employment Tribunal (Taylor & Emir 2006, p. 39). Initially this means that crimes involving a breach of statute are brought in the Employment Tribunal while those involving the common law or contract are brought in the courts. There are some exceptions, however, where breach of contracts can be brought before the Employment Tribunal or the courts. Before 1994, claims for a contract breach could only be brought in the courts. This was changed by the Employment Tribunals Extensions of Jurisdiction (Wales and England) Order. Usually, in a typical process the employee makes an application to a court or tribunal as soon as the employer gives notice of dismissal. This should give the particulars of the grounds of the complaints. Also they should be received within three months of the employee’s effective date of termination. However, an exception is put in place if the court thinks that it was not practically possible for the claimant to file applications within the time period of three months given. The court or tribunal then sends the employer a copy of the application and a special form to be filled by the employer. Here they state whether or not they want to contest the case. Employees who believe they are entitled to make a complaint to an employment tribunal should first try to resolve the dispute through mutual agreement with their employer. Nevertheless, Employment Tribunal statistics suggest not all employees want to resolve issues in the workplace and are keen to exercise their rights to legislation action. Seeking the support and guidance of expert knowledge from professionals allows employees to make an informed decision and the legal action will give the opportunity to present evidence to support their claims. Likewise, reasoned judgments allow for both sides to make amends, for appeals and for justice to take place. However, with the tribunal reforms underway, parties will more often opt for a mutual agreement settlement because of the expensive proposed rates. Pursuing legislation action will not be very friendly to employees, financially, unless they really have a strong case to raise. In cases of collective disputes, legislative action may work since; the total costs will be lower per person. .This can be done, perhaps through the business’s own grievance or appealing. They two parties are allowed to seek advice for a conciliator of the Advisory, Conciliation and Arbitration Services (ACAS). In her speech in May 2012, the Queen announced proposed changes in employment regulations, continuing the Government’s on-going program of employment law reform. The government, for instance, has said that all claims must go to conciliation via Acas first before being forwarded to the tribunal. This provides a good balance between employees and employers in that both parties have time to reconcile and rethink their decisions, while at the same time avoiding the costs of filing a dispute at the tribunal level, since the rates have gone up (See Appendix 1 for the proposed rate changes). The time limit given, however, does not take into account that attempts were made to settle to dispute in advance. Legislation on employment is drafted and enacted by the government. Proposals appear in a bill which then goes through reading and committee procedures in the House of Lords and House of commons before it is recognised as a law. Other sources of employment law include common law and the European law. The common law is the one by judges when they announce their decision in each case. Judges may consider sections from legislation during the on-goings of a case and use them to help them in making decisions but their decisions will become part of the common law. The UK became part of the European Community on 1st January 1973. Any European law has a legal effect from that date. The law has impacts on national employment and safety and health regulation. Advisory, Conciliation and Arbitration Services (Acas) is an independent organisation, funded by the public fund, with the main aim of promoting good employment relations. The body has the legal duty of offering conciliation in most cases when someone has a complaint about their employment rights. The 2008/9 annual report states that Acas provides “impartial expertise to businesses and their employees” and dispute resolution services if an organization needs help to resolve conflicts that arise within the workplace (Acas 2012). Acas was formed in 1974 to improve industrial relations. It is governed by the Trade Union and Labour Relations Act 1992. It is headed by a chairman and overall guidance is given by the Acas Council. The council is made of 12 members who represent employee organisations such as the trade unions. A sizable number represents the employers while the rest comprise experts on employment matters (Acas 2012). The chairman is appointed by the Secretary of State for a period of five years. Based in London but with other offices in major regions, Acas provides advice, conciliation and arbitration in employment cases. Acas gives employment advices over the telephone, and produces brochures on employment law and personnel related issues. These copies are available at their offices or on their website. Acas gives advice on collective matters through conferences and seminars dealing with industrial relations. It does not charge for advice on employment matters. Acas also produces advisory booklets, handbooks and codes of practice. The main advisory hand books include Discipline and Grievances at Work, and the A-Z of Work which gives details on most of the employment issues. The codes of practice are Disciplinary and Grievance Procures (2009), Disclosure of Information to Trade Unions for Collective Bargaining Purposes (revised in 1997), Time Off for Trade Union Duties and Activities (2010). The conciliatory role played by Acas may seem to limit protections for employees in the short run. This is because employees are used to going to the employment tribunal every time they have a case. However, in the long run it is fair to both parties in that Acas is more understanding and unbiased with few costs on both parties. In the period of 2008/09 Acas conciliated about 79,000 applications to Employment Tribunals. Most of these tribunals are sent to Acas. When it receives the application, it appoints a conciliation officer to act on it. The person tries to provide a negotiation platform for settlement before application is made to the tribunal. Since this is voluntary, both parties have to therefore agree to the involvement of Acas. The organisation also conciliates in collective disputes involving unions and employers with the aim of preventing or stopping industrial action. The Employment Act 2002 defines and modifies the roles of the conciliation officer. According to the act, their duty to conciliate was limited to seven weeks for several claims such as redundancy, breach of contract and thirteen weeks for most other claims (Employment Act, 2002). This was however, abolished in Employment Act 2008 and they are now free to conciliate in all cases right up to the date of hearing. The pre-claim conciliation services are offered by Acas for any type of workplace dispute that is likely to result in a claim to the Employment Tribunal. These include disputes relating to discrimination, unfair dismissal, equal pay, and redundancy. If the parties do not reach an agreement at the pre-claim hearing they are still able to pursue their claim in the Employment Tribunal. Disputes of both parties may be referred to Acas for arbitration if both parties agree. This happens if the possibility of reaching a settlement by conciliation fails after being pursued. Acas officers do not arbitrate themselves but instead appoint an independent arbitrator for its list of Central Arbitration Committee, to hear the case. After hearing both sides of the story, officers attempt a compromise between the two parties, leading to a settlement of the case. The Arbitrator’s decision is not final and parties may choose to agree or further pursue their case. Cases are sometimes referred to the Central Arbitration Committee. Acas also directs an arbitration scheme relating only to grievances that involve alleged unfair dismissal and flexible working disputes. Prior to the 1960s and 1970s the amount of law regulating employment relationship in the United Kingdom was very limited. There were hardly any statutory codes to set the minimum standards and few state agencies to enforce the employment laws that were in existence. Professor Otto Khan-Freund (1955) said that law had played a very small role in shaping the industrial relations in the UK and in which the legal profession had less to do with the labour relations. The only state that was important in covering employment matters defined minimum legal standards of safely and health practice and put restrictions on the numbers of hours worked by children and women. For instance, after the First World War, wage councils were formed, requiring employers to make sure that everyone was employed on minimum sets of conditions and terms across the industry. Only industries considered to be low paying, however, were included and despite the expansion of the system after the Second World War, only 12 percent of the working population was covered. Moreover, Davies and Freedland (1993, p.190) state, those councils were generally recognised to be doing very little in practices to raise wage levels in real terms. The only other relevant law was covered in the Truck Acts, which stated when employers could make deductions from wages. Other than this, there were no other regulations governing level of pay, minimum holiday entitlement or hours of work. There were neither statutory minimum notice periods nor laws to protect people from workplace discrimination in terms of sex, race. There was also nothing to protect employees from being dismissed without any payments. Pregnant women had few rights in regards to their work, while laws giving protection to employees on what information employers could hold on them and transfer of a business were not something to even think about. In the words of Khan-Freund, the employment relations in the UK were governed by what he called ‘collective laissez-faire’ system. The result of this was a state that largely stayed out of the employment relationship, instead pursuing what I would call a policy of voluntarism. The courts provided a means by which individual contracts of employment could be enforced by either the employee or employer except as to what was in these contracts, the government had no involvement. The assumptions were that everyone was free to enter into whatever contractual agreement they wished. Somehow, the UK system worked, due to presence of strong trade unions and institutes of collective bargaining that ensured that employers did not abuse this freedom to contract inevitably given to them. Another important fact during this period was the perennial and controversial issue of closed shop rules. Most countries have some form of union security agreements. Apart from the individual freedom, research has focussed on attitudes towards the closed shop. The closed shop rule entailed that everyone who needed to be employed in a trade has to join a union. It is a known fact that central unions tend to be less militant under the system of compulsory union membership (Perrons & Sigle-Rushton 2006). This is because the employees forced to join the union are apathetic and more conservative than their counterparts who join because they feel they want to join with no one forcing them. Employers are more likely to sued the closed shop to come to agreements with less militant unions so as to keep more militant rivals off. Labour laws are a product of history and it is this history that we need to revisit. Trade union law is one of the hardest parts of that history to disentangle. The subject is multifaceted because British law is dynamic, while retaining the same loyalty to the underlying common law concepts and categories, for instance the law of conspiracy, contract and torts. When Margaret Thatcher took over the reins of power in 1979 under the Conservative government, she put in place economic policies to weaken the unions that had been very vocal in the preceding times. When Margaret Thatcher came to power, the population stood at 56.2 million and the economy was not doing so good. For purposes of being more vocal in implementing more economic policies, Thatcher silenced the trade unions. It can therefore be said that economic reasons played an important role in weakening the trade unions to give the government an upper hand. (Butler & Butler 2010). The recessions of the 1980s saw the manufacturing sector shrinking by half while unemployment increased to over 3 million. Union membership fell from a high of 12 million in the 70s to about half of that by late 80s. By appointing Norman Tebbit, he went about stripping the unions of their legal protection. For instance, the shock troops of industrial warfare were done with and they could not barricade ports, factors and public bodies, during disputes. Strike ballots became a obligation. The closed shop rule, which used to force people to join a union if intended to employment, was outlawed. There are plenty of debates going on about the need for employment regulations. Debate among various professions on the issue boils down to whether regulations are likely to improve, detract from or make no difference to whatever labour market outcomes that are supposed to arise without that regulation. The UK labour market is said to be one of the least regulated in the developed countries. Structural unemployment is low, job creation is potentially strong, which gives little convincing that employment regulation accounts for the productivity gap between Britain and other competitor economies. The negative effect on employment arises because regulation is likely to increase labour costs, with the results that employers will, other factors constant, employ fewer people. The increase in cost is not because of the employers having to fund new employee rights – this cost is clawed back from the workers by corresponding reduction the wage elements of total reward packages- but to the administrative costs likely to be incurred in meeting the new regulatory requirements. What matters is the pure red tape costs accompanying regulation, which is usually borne by employers, rather than the cost of rights and entitlements that the regulations provide, which is usually borne by the employees. With the economy set to experience a 1% growth in the 3rd quarter of 2012, the Office of National Statistics states that the economy is slowly healing from double-dip recession. The ONS also state that the GDP growth has increased because of the Olympic Games and June’s extra bank holiday for the Queen’s diamond jubilee (ONS Annual Report 2012). The Olympic tickets alone are said to have added 0.2 of GDP. This has affected employment is one way or the other. For instance, in 2012 unemployment declined by about 45,000 between January and March, bringing hope of an end to the recession-hit economy. According to the office for National Statistics the total number of jobs fell to 2.36 million, its lowest figure since last summer (ONS Annual Report 2012). The UK government is currently trying to reform the Employment Tribunal system, by changing contents of the rule book and re drafting the Tribal Rules of Procedure, with the aim of making them more effective and user friendly. This is on top Vince Cable’s plan in his Enterprise and Regulatory Reform Bill to speed up the Tribunal process and the promotion of early resolution of employment disputes (Butler &Walbert 2010). While most of these changes will be to the potential or actual detriment of employees, there are some issues on additional costs that employers should not. Some of the discussed below: Prospective claimants will be needed to contact Acas before bringing some claims, in an attempt to avoid matters going as far as formal tribunal proceedings. Currently the mandate of Acas is to provide pre-claim conciliation and claimants are under no obligation to contemplate conciliation prior to bringing a claim. Prospective claimants will need to obtain written confirmation of Acas that the pre-claim conciliation has failed and therefore they are allowed to bring a claim. To facilitate this incremental role to Acas more funding will be needed, otherwise the inconvenience and delays of this new step will be significant. This will seem like a case of saving money at tribunals but having to divert funds to Acas for more conciliators. However, by using Acas, shorter time frame is used. Shorter time means more money is actually saved because unnecessary legal processes at the tribunal level are avoided. It is estimated that the Employment Tribunal System costs the tax payer about 84 million pounds per year to run. (Butler & Butler 2010). One of the government’s drivers is to reduce these costs, at the expense of the tax payers. The government has already established the payable fees to the tribunal from the summer of next year. Clearly, employers welcome this change, as most of them feel that this system encourage vexatious claims. This is a fair balance that considers both the employers and their employees. Both will also be more willing to use Acas to avoid more costs. While the Government has been keen to assure its critiques that its aim is not to prevent claims, there can be little doubt that this is untrue and the prospect of pay 1000 pounds for claim pursuance will put off some claimants issue proceedings even where they feel their claims are meritorious. The proposals say that claimants will pay a one off fee and a further fee for the claim to proceed to full hearing. There will also be two types of claims namely level 1 claims and level 2 claims (the rest of the claims). A summary of the planned fee structure for single claims is shown in Appendix 1. The government has proposed to extend the Employment Tribunals the fee reduction system in the civil courts of in England and Wales. Many claimants are likely to be in receipts of benefits when they bring forward a Tribunal claims there are concerns that too many exemptions could underpin the government’s aim of shifting the cost burden. When it comes to reimbursement negotiations, some have argued that claimants might be less eager to settle if they have had to pay the hearing fee. EAT appeals: for instance if an employer would like to bring an appeal before the Employment Appeal tribunal they will incur a cost. This includes an issue fee of 400 pounds and a hearing fee of 1200 pounds, payable in the advance of hearing New Tribunal Forms: Response and Claim forms are going to look different after being redrafted. Timetabling of hearings: Tribunals will be responsible for setting timetables for evidence and submissions in an attempt to ensure that hearings are dealt with within the allocated time. Currently the Employment Tribunal has the chairman sitting and has lost two lay members in the Tribunal Dismissal case. The lay members seemed to have a good understanding of the employees needs and this to some extents, tips the balance in favor of the employers. In May, the Beechcroft Report on employment regulations and deregulation was published by venture capitalist Adrian Beechcroft. This report, submitted before the economic situation worsened, says that radical action needs to be focussed on helping small firms overwhelmed by regulations. Its explicitly states the need for introduction of compensated no fault dismissal for businesses and exemptions from unfair dismissal law for small business or firms with less than 10 employees. The Beechcroft Report seems to insinuate that employers will be able to fire at will if it gets its way. In a draft report leaked out Mr. Beechcroft explicitly says “the downside of the proposal is that some people would be dismissed simply because their employer doesn’t like them. While that is sad I believe it is a price worth paying…..” Beechcroft has suggested doing away with pension auto-enrolment. Employers can also opt out in some regulations if it was stopping them from hiring people. For the large companies he suggests stopping employers from being liable if their workers make discriminating comments against other workers, and doing away with the statutory redundancy notice by two thirds, to just 30 days up from 90 days. In my view, these proposals seem to take away job security from the hands of every single worker by introduction of its ‘no fault dismissal’. Without even giving any evidence, the Beechcroft Report claims that ripping up rights at work across the board is aimed at creating more jobs and helping end the recession. Businesses should have been given the chance to opt out of a whole range of regulations, for instance flexible parental leave, equal pay audits and forced pension contributions under Beechroft’s plans. They would have been given the chance to bring back a default age for retirement, have pay-outs at tribunals capped, bring in staff from abroad without having to advertise in job centres before and slash redundancy notice periods. His report has even suggested that a new licensing regime be put in place to allow small firms to employ children, like delivery boys. Notably too, he took a shot at the Equality Act 2010, and suggested that the part of the law that makes employers responsible for discrimination by harassment by customer or employee against a staff member be scrapped off. He also recommended that the complex rules governing the employment tribunals be simplified in the soonest time possible, while default retirement age could be reintroduced if its abolition seemed too problematic for firms keen to freshen up their labour force. In conclusion, it is fair to say that the British employment law, having been lightly regulated in the past has become heavily regulated of late. While it has been resisted and criticised by employers, who are concerned about its costs increment, it has been welcomed by unions and employees, who feel that it is more social just and aimed at increasing productivity, and hence profits. It is also true to say that we have been experiencing an increase in the number of law cases passing through the Employment Tribunal System. The advent of ‘no win no fee’, plus the increase in availability of legal expenses policies has enabled employees to forward some successful claims (Sherlinker 2012).The Acas pre-litigation system is likely to help claimants in understanding their role and prevent hopeless cases from going to the tribunal. This requires that Acas is sufficiently funded so that it can do a good job of bringing the parties together and not act as a delaying factor in claimants submitting their claims. My own view is that the balance of power between employers and employees is not tipped and is therefore fair enough for each party. Thus, if a party is well prepared and justified, it can put up a strong case against the other and win. Reforms and more on-going changes are expected to come our way. The courts, Employment Tribunal and Acas are the government’s drivers to equal employment law. Their impact is not limited as such and with slight modifications, it is bound to be fair to both the employers and the employees. Different groups hold different opinions on whether the balance is more tipped towards the employers or the employees. However, they are justified to think so, since this is an open ended debate. Giving Acas more power to advise and conciliate of employment issues before they are filed at the ET is a good way of saving time and avoiding costs. We cannot afford to live without regulation either as employees or employers. For instance, employers seem to discover new ways of circumventing regulations or finding loopholes in the regulations therefore increasing profitability at the expense of their employees. In the case of employees, if there are no regulations, they are likely to shift responsibilities and risks to their employers. With the UK being a member of the European Union, some of its policies and employment relations are governed by the EU laws, aimed at promoting trade and boosting productivity. The balance between employees and employers is therefore just right, with external memberships like EU making this precise. Word Count: 4600 Bibliography ACAS . (2012). Advisory, Conciliation and Arbitration Service. Available: http://www.acas.org.uk/index.aspx?articleid=1363. Last accessed 1st Dec 2012. Beechcroft, A. M., 2011. The Adrian Beechcroft Report on Employment Law: a brief look. Political Science Quarterly, 42 (6), p.564. British Chambers of Commerce. 2011. (Annual Review 2011). London: HMSO. Butler, D., & Butler, G., 2010, British Political Facts, Palgrave Macmillan, London. Butler, J. D. & Walbert, D.F. (eds) 2010, Employment and the Law, Facts on File Publications, New York. Davies, M., & Freedland, J. (2010). 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In the citation Willey, B. 2011, Employment law in context, an introduction for HR professionals, Person Education Limited, Essex, England. 7 (1), p.36 done Wiseman, E .2012, 'The case against 'right-to-work' laws' The Labour Gazette October, p.446-49. Appendices Appendix 1. Fee type Issue Fee Hearing Fee Total Cost Level 1 claims ? 160 ? 230 ? 390 Level 2 claims ? 250 ? 950 ? 1200 Source: Employment Tribunal System Reforms Read More