Changing patterns in UK dispute resolution Professor Keith Sisson LRC Seminar 21/11/05

Starting points decline in ‘organised’ conflict – 2004/05 = 1,126 Acas collective conciliation cases mainly a public service phenomenon rise in ‘unorganised’ conflict employment tribunal cases top 100,000 absenteeism – 50 times as many days lost through absenteeism as through ‘organised’ conflict labour turnover the productivity ‘gap’/public service reform/engagement

The changing context ‘ individualisation’/employment rights/legal dependency changing patterns of demand – the challenge of engagement changing patterns of supply – the challenge of resourcing

Changing patterns of supply – the impact of demography labour scarcity “feminisation” - by 2011, 82% of extra jobs will be taken by women the “greying” of the workforce - by 2006, year olds will form largest group in work force declining birth rates: by 2011 >16s will make up only 18% of population more young people into higher education longevity ethnic minorities to account for 50% of growth in working population over next decade migrant workers to play key role

The collective dimension – recent developments pluri-annual agreements procedural differentiation eg ‘two-tier workforce’ arrangements shifting the focus – from ‘distributive bargaining’ to ‘integrative bargaining’ eg NHS Agenda for change ‘partnership’ arrangements new consultative forums [‘assisted negotiation’?]

The collective dimension – on-going problems and issues fragmented pay determination the Treasury/macro-economic policy – implications for numbers/pay + ‘no-strike’/’arbitration’ deals ‘competitive’ rather than ‘deliberative’ governance

The individual dimension – policy and practice issues encouraging ‘moral panic’ – the case of attendance statutory discipline and grievance procedures ‘fast track’/’fixed period’ conciliation reform of the employment tribunal system promoting ADR (alternative dispute resolution)

The individual dimension – major uncertainties Employment tribunal applications are down /05 = 86,943 individual conciliation cases not yet clear, however, if a temporary phenomenon reflecting eg people adjusting, different approach by Tribunal officials or whether it is permanent, eg more people using workplace procedures or being put off by length and complexity of application form the future of Acas conciliation (differential service standards, another public spending review, DCA aspirations)

The individual dimension – a portfolio of ADR possibilities neutral fact-finding/evaluation conciliation/ ‘facilitative mediation’ mediation/ ‘directive mediation’ varieties of arbitration/expert determination ombudsmen/women arrangements combinations eg ‘med-arb ’

ADR – the benefits workplace disputes are costly. if you are an manager, they take up valuable time and distract employees from the job = loss of performance, not to mention stress if you are an employee, they take up time and energy and adversely affect life in and out of the workplace compared to the Tribunal route, mediation is informal, less stressful, quick, voluntary, confidential and relatively cheap can produces better outcomes, including ‘repairing’ employment relationship can also help to produce a virtuous circle of employment relations, promoting trust/ engagement/cooperation

ADR – how it ‘works’ brings an opportunity to change the dynamics of the situation, allowing parties to air their frustration or anger in a ‘safe’, less confrontational environment gives people the chance to ‘draw breath’ and get back into talks keeps communication channels open by using neutral or unemotive language and enabling people to get feedback on the strength of their case makes it possible to introduce fresh ideas - the process of challenging ideas or probing for the logic of existing positions can itself help to find new solutions spelling out the consequences of failing to reach a resolution in an uncompromising way can also be extremely valuable – for instance, the positive impact on customer confidence or job security

Acas’ NHS ADR pilots volunteer trusts Acas advisory resource to assist in scheme design accreditation of internal mediators familiarise managers and representatives in mediation scheme evaluation of the scheme after 6 months

ADR – the major barriers legal dependency too embedded? employer has to bear ‘direct’ costs culture – ‘conflict management’? climate of collective dimension needs commitment/encouragement to use/wider training

A forward look – rising to the challenge of legal dependency enormous potential for information and advice as well as ADR but …. needs acceptance of wider role for Acas – with implications for funding regime needs acceptance of the ‘employment relations matters’ message needs a joined-up approach to policy – the language of ‘market failure’ doesn’t help fitting in the CEHR [an Employment Rights Commission?]