34 Indus. L.J. 217 Industrial Law Journal September, 2005 Article *217 THE UNORGANISED WORKER: THE DECLINE IN COLLECTIVISM AND NEW HURDLES TO INDIVIDUAL EMPLOYMENT RIGHTS Anna Pollert [FNa1] Copyright © 2005 by Industrial Law Society; Anna Pollert ABSTRACT The 'unorganised' worker (neither unionised nor covered by a collective agreement) is the norm in Britain, especially in the private sector, which employs about 70% of employees. In 2003, union membership was down to 29.3%, and 18.2% in the private sector. Collective bargaining covers 72.2% of workers in the public sector, but only 22.1% in the private, [FN1] leaving statutory regulation of individual employment rights as the only protection for the majority of workers. In this context, access to these rights, and ease of enforcement, while never previously straightforward, are becoming increasingly crucial. The individualisation of the employment relationship, which began before New Labour returned to power in 1997, has continued with little restoration of collective rights and new legislation enhancing individual rights. The government's commitment to neo-liberalism and maintaining a 'flexible' labour force has ensured that these further rights are circumscribed by new legislation, which places them further out of reach. This paper discusses this process in the context of the difficulties workers already face in obtaining support and guidance, the lack of affordable professional legal advice and representation and the impediments to providing an adequate service by the underfunded voluntary sector. 1. NEW LABOUR AND EMPLOYMENT RIGHTS FOR A 'FLEXIBLE' LABOUR MARKET The contraction in collectivism in British industrial relations has raised the significance of regulation of the individual employment contract. [FN2] Union membership has dropped from its height of 55% of employees in 1979 to 29.3% in *218 2003 and collective bargaining coverage over pay declined from 70% of employees in 1984 to 41% in 1998, and to 35.9% by 2003. [FN3] Where collective bargaining continues, among a small minority of relatively skilled and professional workers, its scope has narrowed and its impact on management discretion has diminished. [FN4] Even if collective regulation makes some recovery, whether in 'partnership agreements' or new consultation procedures following the Information and Consultation Directive, [FN5] non-union employment is the norm. [FN6] For the majority of employees 'the need for legislative regulation of the employment relationship has never been greater'. [FN7] This paper addresses this reality and probes the evidence that, just as

individual statutory rights are becoming more indispensable, their enforcement--already weak--is becoming increasingly complex and inaccessible. This trend needs to be seen in the distinctive manner in which New Labour has emphasised improving individual employment rights. These include legislation on the Minimum Wage and implementing European Council Directives on working time, part-time workers, and maternity and parental leave. [FN8] In its second term from 2001, the 2002 Employment Act (EA 2002) [FN9] provided further rights for maternity and paternity leave, rights for fixedterm employees and rights for workers to request changes in working hours. [FN10] But in all cases, implementation has been minimalist and accompanied by blocks, delays and loopholes. [FN11] The *219 government's commitment to neo-liberalism and maintaining a 'flexible' labour force has prompted a dualist policy of introducing new employment rights with new barriers to reaching them. In particular, the rise in employment tribunal (ET) claims, which is partly attributable to new entitlements, prompted the restrictions in the EA 2002 to accessing the statutory process of enforcing the law. While tribunal claims have risen from 40,000 in 1990 to a peak of 130,000 in 2000-01, collective conflicts, such as strikes and overtime bans, have declined--a decrease which has been faster than the drop in unionisation, partly because of a 'hardening of employer attitudes to unions since the mid-1980s'. [FN12] This is not to suggest that individual conflicts have replaced collective ones, but they have been rendered more visible by government disapproval of an alleged 'compensation culture'. In fact, its alarm at an exponential growth in ET applications from the 2000-01 peak was premature, since the 130,000 included several large multiple claims and by 2002 the number of registered applications to ETs had fallen to 98,617. Although this rose again to 114,042 in 2003-04, of the 111,170 live cases dating from 1997, 44,000 were part-time worker pension cases. [FN13] If rising costs are a major concern, this is largely due to ETs' increasing complexity, not a new climate of litigiousness, as numerous studies show. WERS 98 found only one in ten employee dismissals became claims to an ET and it has been estimated that only 15 to 25% of disputes that involve a breach of legal rights go to tribunal. [FN14] Research on experience of the civil justice system found that only 18% of employment problems with potential legal redress reached tribunal application between 1992 and 1997, [FN15] and a study of knowledge of employment rights found that, of the 16% of respondents who reported an experience of problems regarding their 'rights' at work in the last five years, just 5.8% proceeded to an ET application. [FN16] A 2004 telephone survey of 500 'unorganised workers' with problems at work found that 35% did nothing about them, and only 2.4% made ET *220 claims. [FN17] If there is a growing industrial relations crisis, it is not the rise in ETs, but the rise in individual employment problems. In 2002-03, the Citizens Advice Bureaux (CABx) dealt with 510,000 employment problems and calls to the Acas helpline increased from 755, 449 in 2001-02 to 796,649 in 2003-04, the proportion from employees or workers rising from 34 to 55% over this period. [FN18] These data do not register those who never reach the stage of asking for advice. Nevertheless the alleged rise in litigiousness informed the government's consultation paper prior to the EA 2002, Routes to Resolution, [FN19] which urged the reduction in ET applications and greater use of internal procedures, while the Better Regulation Task Force [FN20] paper, Employment Regulation: Striking a Balance emphasised finding alternatives to state regulation, exhorting companies to improve 'best practice' and establish voluntary standards. The approach to improving internal dispute procedures shies away from collective regulation, [FN21] in spite of government acknowledgement that unionised workplaces were

'better at managing individual employment disputes'. [FN22] Concerns with the cost of ETs do not extend to the employment and social costs of 'exit' as the 'solution' to problems at work, despite Routes to Resolution noting 'the cost of recruiting a replacement if the employee leaves or is dismissed is also high at an average £3,500 per employee'. [FN23] Casual employment is not regarded as a problem, nor is it noted that ET applications are low in casualised sections of the labour market. WERS 98 found that the hotels and catering sector, noted in Earnshaw et al's study as poor on disciplinary processes, [FN24] had a low rate of unfair dismissal claims, but high turnover, with few workers with the required length of service for protection under this jurisdiction. Since 1990, the greatest increase in resort to ETs was in workplaces where there were union members but no union recognition, which suggests knowledge of rights without collective means of enforcement may be contributory factors. [FN25] *221 There is no Labour Inspectorate in Britain, as in most other European countries. [FN26] The onus is on workers to understand their employment rights and seeking advice on action requires navigating a fragmented and uncoordinated maze of information. Quite apart from the difficulties of the tribunal process itself, even if an employee succeeds, the ET system in England and Wales has no powers of enforcement (unlike Scotland), in spite of the Employment Tribunal Task-force recommendation that this be remedied. [FN27] Challenging evasive employers involves a protracted and often unaffordable process of registration with the County Courts and their failure to comply with re-instatement or re-engagement orders after successful unfair dismissal claims can only be met with increased compensation orders. [FN28] A recent study of CABxsupported ET awards found that at least one in twenty involved non-payment, and suggests that, since the proportion of ETs which are advised or represented by CABx is quite low, this probably underestimates the scale of non-payment. [FN29] 2. NAVIGATING THE KNOWLEDGE AND ADVICE ROUTES TO EMPLOYMENT RIGHTS Employer compliance with employment law requires at least an awareness of the legislation, but research on employers' awareness of legislation, especially among small firms, suggests it is patchy at best. A DTI commissioned survey of small employers (1-50 employees) found awareness of individual employment rights was based on experience of having to deal with them--a 'need to know' basis--and the more dealings with these rights, the more critical they were of them. [FN30] However, where knowledge of new legislation exists, there is evidence of *222 its exercise in minimisation or avoidance of its impact. The 1998 Working Time Regulations have made a marginal impact on Britain's long working hours and, in particular, the opt-out enabled by Article 18(1)(b) of the Working Time Directive is widely used. [FN31] Research on the application of rights in terms of proper disciplinary and grievance procedures demonstrated lack of consultation with employees, limited training, a gap between formal rules and practice, and inconsistency in setting and applying standards, and, in the worst cases of small firms, arbitrary decisions with lipservice to formal procedure. [FN32] There is thus little to support confidence in a voluntary system exhorting 'best-practice' among employers, without strong sanction and enforcement procedures. Workers' knowledge of employment rights is poor, and the most vulnerable know least. A recent random survey of 476 people's awareness of general employment rights in shopping

centres in the West Midlands found that women, ethnic minorities, young people and the low paid were the least likely to be aware. [FN33] Among established rights, only 59% overall were aware of the right to a written statement of terms and conditions, and of new rights, only 66% were aware of the right to a paid holiday, 52% of the right to refuse to work over 48 hours and 32% of the rights for emergency time-off to care for dependants. Only the National Minimum Wage (NMW) stood out, with 97% aware of this right. Awareness of some areas of rights differed by the gender, ethnic and pay background of respondents. The lowest paid were least aware: while 78% of those earning over £6 per hour were aware of the right to a written statement, only 48% of those earning under £4.50 were. The contrast between these wage groups was demonstrated in awareness of unfair dismissal rights (49% and 30% respectively), and rights for sick pay (75% compared with 42%). Men and women were equally aware of the NMW and right to an itemised pay slip, but women were less aware than men of the right to a written statement of terms and conditions within two months of starting a job; to be paid when off sick; and to be able to claim unfair dismissal after a year (57, 53 and 35% compared with 62, 67 and 44%). Ethnic minorities were less aware than white respondents of the right to an itemised pay slip (74% of black, 82% of Asian and 91% of white respondents) and to be paid when off sick (53, 45 and 61% of the same groups). Those who reach advice agencies, such as the CABx, are among the more aware, in that they have registered a 'problem'. Yet workers have routinely been *223 wrongly told that they do not qualify for rights. [FN34] Other research points to the fundamental difference between a broad awareness of a right and an understanding of how to put into practice. For example, the Low Pay Commission found that although 99% of low-paid workers were aware of the NMW, only half of them were aware of the actual rate, just 21% were aware of the NMW Help Line and only 7% knew how to make a complaint of minimum wage underpayment. [FN35] A DTI-commissioned study of knowledge and awareness of individual employment rights in Britain found that only 17% of respondents could say they 'knew a lot' about their rights at work, while 30% said they 'could know more and would like to be able to find out more'. [FN36] A quarter felt they were not very well informed, and of these, 19% felt they 'did not know nearly enough and would like to know more'. Only 9% knew where to go for advice as well as not knowing much. Awareness of individual rights showed a similar pattern to the studies already mentioned: almost half were able to name at least one employment law without prompting and almost two-thirds with prompting -- especially on working time, health and safety and discrimination. Awareness of the National Minimum Wage was the most widespread (91%), but awareness of the next best-known right, on parental leave, dropped to 51%. While over 20% of those in managerial and professional occupations, as well as those working in the public sector, business and finance claimed to be 'well informed and knowledgeable', this compared with only 9.6% of craft and skilled manual workers. The study also found that lower paid workers were the most likely to have actually experienced problems at work: 23% of those earning between £5 and £7.40 per hour, compared with 10% of those earning over £10.97. [FN37] Research on non-unionised, unorganised workers with serious problems at work suggests a low sense of entitlement, with 37% thinking none of their problems infringed their rights, and a further 8% being unsure. [FN38] Given workers' lack of knowledge of employment rights, access to reliable, independent and affordable support and advice outside the workplace is vital. For many, the voluntary sector has become the mainstay of support. Genn's study of justiciable problems during 1997 found

that the CABx were the single largest source of advice during any stage of an employment problem (48% of *224 respondents with employment problems), and were the first port of call for almost a quarter. [FN39] In the DTI study of knowledge and awareness of individual employment rights, among those who had experienced a problem and who sought advice (56%), the largest percent (32%) went to a CAB, followed by 30 to the personnel/HR manager at work, and 24% to a union and 21% a lawyer. [FN40] Since both these surveys included unionised workers, the proportion of the unorganised who rely on the CABx and other parts of the voluntary sector for legal support and advice is likely to be higher. Yet many would prefer to use a lawyer if they could afford it. Among ET applicants, 43% desired additional advice from a solicitor, barrister or other type of lawyer, but 24% did not use their preferred choice because they 'could not afford it' and 13% because they could not find someone to ask. In fact, only 11% said they desired advice from a CAB, suggesting they do so mainly for financial reasons. [FN41] The CABx system is seriously under-resourced. Inadequate funding has been endemic to an organisation originally set up in 1939 by volunteers to deal temporarily with citizens' wartime civic problems, but which has since become permanently institutionalised in the absence of core state-funded advice on welfare and employment rights. [FN42] While the DTI funds headquarters, branches increasingly spend time seeking short-term funding from a variety of sources, ranging form the EU, the National Lottery and the private sector, while absolute increases in local authority funding obscure the decline from 54 to 50% of the total between 2002 to 2003. [FN43] Interviews with advisors in fifteen CABx in the Midlands in 2003-04 confirmed that they were struggling with too few advisors, too little time, and declining resources. In 2003-04, of a total staff of 26,500, 79% were volunteers (many part-time), 60% of whom were trained advisors. [FN44] Not surprisingly, there is an unevenness in CAB provision across the country, and respondents in Paths to Justice experienced difficulty in accessing bureaux, because of limited opening times, waiting times for an appointment and difficulty in making telephone contact. [FN45] In its submission to the ET Taskforce, the CAB pointed out that while all *225 bureaux offer general advice on employment matters, just 60% had employment specialists, and 70% offered limited representation at employment tribunals, usually provided by a single advisor who also represented at other tribunals, such as welfare, with little, if any, clerical or administrative support. [FN46] The inadequacy of the voluntary sector as a major support infrastructure for an increasingly complex system of employment law is evident. Destabilising it still further are the adverse effects of other legislation, especially the Access to Justice Act 1999. Firstly, the Community Legal Service (CLS) created by the Act to take over legal aid has, through its funding assessment rules, depleted the stock of publicly funded lawyers which were essential for CABx referral, while a sector of privatised and expensive conditional fees arrangements, as well as unregulated private advice consultancies, grows. Both the Law Society and the Legal Services Commission found the largest decline in CLS work was in employment law (minus 15% according to the LSC and minus 12% according to the Law Society). [FN47] As a consequence, the CAB study, The Geography of Advice, showed that 39% of bureaux surveyed thought their office was in 'an advice desert', with no recourse to legal aid lawyers and 27% had difficulties with finding CLS employment law solicitors. [FN48] This should be set in the context of the Leggatt report's concerns about the quality of advice from the profit-based advice business. [FN49] In spite of calls for regulation, none seems forthcoming.

Meanwhile, the voluntary sector, which had 416 CLS franchises in 2004, struggles under the CLS rules. Firstly, the rules disqualify many of the poorest workers--precisely those most likely to resort to these organisations. In addition to means-tested eligibility for CLS funded 'legal help' (£600 monthly disposable household income), the 'sufficient benefit test' (to the client and the 'community') means that if CLS outlay is regarded as incommensurate with likely ET compensation; it can be retrospectively disallowed. Not only does this discriminate against the low paid, it also reduces the organisation's CLS work, which mainly involves the low-paid, as well as making the funding unpredictable. [FN50] Secondly, the CLS funding regime is based on the business model of the solicitor's firm, with no comprehension of the voluntary sector's ability to deal with its new administrative *226 burdens. CLS budgets are tied to specified CLS hours (which cannot always be met if clients do not fulfil all the CLS funding-assessment rules). Paid time does not cover dealing with clients' correspondence, and since 2003, the contracts have demanded even more paper-work, with no additional funding. The net effect of CLS contracts is to eat into advice and tribunal representation time, which is already compromised by time spent on seeking funding, forcing many CABx to withdraw from this form of publicly funded service. [FN51] Apart from the voluntary sector, there are other resources for cheap or free advice, including telephone helplines, although problems in making contact are obstacles. A further source is leaflets: in 2002-03, 43% of ET applicants obtained information from Acas publications and leaflets and 37% from those of the Employment Tribunals Service (ETS). [FN52] However, the government is shifting to electronic-only information, with the cessation in summer 2004 of DTI booklets and leaflets on employment rights, to text available only via the internet, a move which will disadvantage low-earning workers further. [FN53] Home internet access is heavily income-dependent. In 2003, only 12, 14 and 22% respectively of the lowest three gross household income deciles had home internet access, compared with 71, 77 and 86% in the top three deciles. [FN54] This is reflected in the fact that only 16% of ET applicants obtained information from the Acas website in 2003, 14% from the ETS's and 10% from the DTI's. [FN55] The internet-only policy transfers the costs of paper and printing to the lowpaid, vulnerable worker. 3. RAISING THE BARRIERS TO LEGAL REDRESS A. The Privatisation of Enforcement On top of these obstacles to reaching advice and representation to reach the statutory process, there are now further curbs. One element is the government's strategy to divert dispute resolution from legal enforcement to Alternative Dispute Resolution (ADR), [FN56] giving Acas an additional role from 2001 as arbitrator in *227 cases of unfair dismissal in England and Wales and requiring a waiver of statutory rights to have the dispute resolved according to the law. [FN57] The hearing is held in private with one arbitrator and there is very limited right of appeal. The system fails to address the inequalities of the parties, since it assumes that the employee will have received professional advice and representation, although the government noted that 'more than 40% of applicants have no representation, compared with 15% of employers'. [FN58] An update from 1998 shows that 42% of applicants are represented at a tribunal, compared with 72% of employers. [FN59] Advisors and unions have so far discouraged prospective applicants from the ADR route. [FN60] Acas's own research on perceptions and experience of the Scheme in

2004 found that absence of case law and lack of appeal deterred users. [FN61] The government intends other private organisations to act as conciliators or mediators and although of limited activity at present, there is some evidence of growth in this process and it could be that the barriers to ET application created in the EA 2002 will succeed in encouraging unions and others to opt for it. [FN62] B. The EA 2002 and Hurdles to the Employment Tribunal System 'Not so much a curate's egg; it is more a manky meat sandwich. Parts 1 and 4 are first class, but Parts 2 and 3 leave a great deal to be desired.' [FN63] The EA 2002 delivered a forked-tongued legal enactment: the social democratic voice of new rights (for child-care leave, union learning-representatives, implementing the EU Fixed Term Work directive and flexible working) along-side the neo-liberal voice of new restrictions to reaching statutory enforcement. The regulatory impact assessment of the legislation estimated that the new rules on tribunal applications and dismissal and disciplinary procedures would reduce ET *228 applications by 23 to 31%, or 30,000-40,000 applications, saving £14-£19 million to the tax-payer and £65-£90 million to the employer [FN64] Justification for the legislation was employees' alleged rising propensity to make applications that were unnecessary or vexatious. [FN65] This was despite the government acknowledging its own commissioned research explaining the trend in rising ET applications in economic, labour market and industrial relations changes. [FN66] The government's main justification for raising the hurdles to ET applications, supposedly based on the 1998 Survey of ET Applications (SETA 98), claimed that 'sixty-four per cent of applications to employment tribunals come from employees who have not attempted to resolve the problem directly with their employer in the first instance'. [FN67] The selective and misleading use of evidence did not escape notice. [FN68] In fact, what SETA 98 said was that '65 per cent of employers and 60 per cent of applicants said there was no meeting to try to resolve the dispute', but 'these findings have to be interpreted with some care'. More careful wording to capture 'other attempts' to resolve the dispute internally, found that '37 per cent ... is probably the most comprehensive indicator of (lack of) dialogue available from this data'. [FN69] It also ignored SETA 98's major findings that workers rarely use, and are generally ignorant of the law: 95% of applicants had never made a previous ET application, 54% said they knew 'nothing at all' about the ET system, and a further 35% knew only 'a little'. [FN70] Lastly, it is silent on the core issue, that it is the lower paid and unorganized workers who resort to tribunals: the mean annual pay of applicants was '£15,000 per annum, not far below average earnings at the time' and '78 per cent of applicants were not members of trade unions or staff associations'. [FN71] Further evidence on lack of litigiousness includes Genn's study of justiciable problems, which found that 16% of those with an employment problem took no action, a relatively high figure compared with other problems; of these 33% did so because they thought nothing could be done. And, contrary to the claims that *229 workers do not communicate sufficiently with employers prior to tribunal application, Genn found that of those who took action, the most common actions were seeking advice (56%) and talking or writing to the other side (52%), three-fifths having made contact with 'the other side' before obtaining advice, compared with 3% of employers who tried to make contact in order to resolve the problem. [FN72] Only 14% ended with a court or tribunal decision. The CAB's response to Routes to Resolution

cites at least 400,000 out of some 640,000 employment advice enquires in 2000-01, who had been denied one or more of their statutory rights, and even when advised of these, many were particularly reluctant to take enforcement action through the employment tribunal system, for fear of losing their job or otherwise being unfairly treated by their employer as a result'. [FN73] Despite the evidence of lack of litigiousness, new obstacles were placed in the way of workers seeking statutory redress. The first was an intimidatory costs regime established in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 (ET Regulations 2001); the second, containing financial and other penalties, came with the EA 2002, Parts 2 and 3 containing Tribunal Reform and new statutory procedures for Dispute Resolution. In October 2004, these came into operation together with the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, and the EA 2002 (Dispute Resolution) Regulations 2004. C. New Costs Ruling The proposals for the ET Regulations 2001 appeared before the Leggatt review of tribunals (March 2001), which noted the lack of research or consideration of other policy options, and the danger that a general costs regime would be 'a powerful disincentive' to going to ETs and damage their role in improving industrial relations. [FN74] Financial deterrence went ahead anyway. First, the pre-hearing deposit was increased from £150 to £500. [FN75] Second, the regulations extended the scope for costs against either party from behaving 'frivolously, vexatiously, abusively, disruptively or otherwise unreasonably' to 'the bringing or conducting of the proceedings by a party (being) misconceived' [FN76]--the vague meaning of which opens *230 a vast new agenda for the tribunal to adjudicate. Finally, the maximum which could be awarded by the ET increased from £500 to £10,000. [FN77] Objections to the changes from the TUC, trade unions, the CABx and the Legal Action Group included lack of research or consultation; absence of legal aid to cover costs; lack of specialist employment law advice for many applicants; fear that costs could deter viable cases; and the fact that ETs already had powers to deal with weak cases. [FN78] Criticism delayed the legislation from April until July 2001, but it was passed under negative resolution procedure, and so without debate or votes in either Houses of Parliament, and came into force on 17 July 2001. The awarding of costs occurs in a tiny percentage of tribunal cases, but since the legislation, it has increased (Table 1). While the percentage of costs against respondents is higher than that against applicants, the trend suggests growth in costs against the latter -- from 27 to 34% between 2001-02 and 2003- 04. Meanwhile, the level of costs awarded has increased--from a median £250 in 2000/01, to £1000 in 2003/04. It is not possible to compare the amounts exactly between these two years, since the ETS Annual Reports changed the reporting methods, with no breakdown between applicants and respondents until after 2000/01. In 2002, 28% of awards against applicants were above £ 1000, compared with only 16% were against employers. However, ETS Annual Reports for 2002/03 and *231 2003/04 show that almost half the costs for both applicants and respondents were above £1,000 by 2004, and for applicants, there were large increases in the £1001-£2000 and the £4001-£6000 ranges.

Table 1. Costs Awarded by Employment Tribunals Year Number of applications All costs awarded Incidence of costs as % all applications Costs awarded against applicant Incidence of costs awarded against applicant as % all costs Costs awarded against respondent Incidence of costs awarded against respondent % costs

2000-01 130,408

2001-02 112,227

2002-03 98,617

2003-04 115,042

247

636

998

976

0.19

0.57

1.01

0.85

na

169

307

332

na

27%

31%

34%

na

467

691

644

na

73%

69%

66%

Average award

costs £295

£983

£1,524

£1,859

Median award

costs £250

£500

£703

£1000

------------------------------------------------------------------------------Source: Calculated from ETS Annual Reports, 2001-02, 2002-03, 2003-04, Appendix 1. The increases in the costs regime since the 2001 regulations is illustrated by the fact that while in 2000/01 approximately one third of costs were below £200 and two-thirds below £500, by 2003/04, a third were between £ 1000 and £6000. Although costs above £1000 against respondents grew by 12.6 percentage points compared with 8.1 percentage points against applicants, as the TUC argued, 'a costs penalty on an individual has a far greater effect than it does on an organisation'. [FN79] How these will change with the EA 2002 and its accompanying 2004 tribunal regulations remains to be seen. If the major purpose of the costs regime was to deter applicants, thus dismissing the Leggatt review warnings, the policy has succeeded. Among those who made an ET application between March 2002 and 2003, the costs regime made 41% of those who withdrew 'more likely to withdraw', while the same factor affected 18% of those who privately settled and 24% of Acas settled cases. [FN80] There is widespread evidence of cost threats as intimidation. The CAB reports 'an explosive increase in the making of costs threats to applicants--and even to CABx

representing them--by employers' lawyers'. [FN81] The Legal Action Group refers to similar experiences among workers advised by Law Centres, the Free Representation Unit and the Equal Opportunities Commission. [FN82] D. New Rules for Dispute Resolution: Fairness at Work or Preventing Claims? The EA 2002 (Dispute Resolution) Regulations 2004 SI 2004/752 came into force on 1 October 2004, under the powers of sections 31, 32, and 33 of the EA 2002 and applying Schedule 2, Part 1 on statutory dismissal and disciplinary procedures (DDPs) and Part 2, on statutory grievance procedures (GPs). These apply to all employers, including those employing fewer than 20 employees, and to employees, but not 'workers'. Failure by an employee to comply with the statutory procedure obliges a tribunal to decrease an employee's award by 10% and up to 50% (if an ET application is not barred in the first place), and conversely, failure by an employer to comply with it obliges an increase in award by 10% and up to 50%--unless there are 'exceptional circumstances'. [FN83] *232 In brief, the DDPs require either a three-stage 'standard' procedure, or a two-stage 'modified' procedure. The standard DDP requires first, a statement of grounds for contemplating dismissal or taking disciplinary action and an invitation to attend a meeting, second, a meeting and third, an appeal stage triggered by employee request, which must be followed by the employer's invitation to a further meeting. The modified DDP, applying only if the employee has already been dismissed for gross misconduct, requires a written statement explaining the grounds, and an appeal stage with invitation to a meeting. A safeguard is supposed to ensure that the employer does not use the modified DDP to dismiss first, and ask questions later, specifying its use only in circumstances where instant dismissal follows immediately on the employer finding out about the employee's conduct. [FN84] Failure to comply with the statutory procedures by the employer introduces a new form of automatically unfair dismissal. [FN85] However, the DDPs require only minimal procedural standards and a potential downgrading of best-practice, whereby failure to apply other 'fair procedure' in addition to the minimum (for example, a company procedure and/or one following the Acas Code), will no longer be considered automatically unfair. [FN86] This will allow the tribunal to revert to prePolkey [FN87] consideration as to whether procedural impropriety would have made any difference to the employer's reasonableness to dismiss. Thus the new automatic procedural unfair dismissal following non-compliance with the minimum statutory DDP made no concessions to the critics of the proposals to disregard procedural unfairness in the government's consultation paper, 'Routes to Resolution'. [FN88] The DDPs appear to offer safeguards to employees, even in small workplaces. But these are employees who will typically be unrepresented by a union and their complexity, in terms of interpretation as to whether the statutory procedure was followed or not, requires expert understanding of complex regulations. How does an unrepresented employee question an unsatisfactory 'meeting', or a legally unqualified advisor challenge abuse of the modified procedure route against a legally represented employer? Concerns about predictable disputes on this issue are informed by research showing that while 84% of employers *233 claimed to have a written disciplinary and grievance procedure in 2003, only 41% of employees thought this was the case, and 54% of employers thought these had been fully followed compared with 22% of employees. [FN89]

The new GPs likewise require either a three-stage 'standard' procedure, or a two-stage 'modified' procedure. For the standard one, tribunal claims are barred unless the employee completes Step 1, setting out in writing the grievance, sends it to the employer and then waits for 28 days. [FN90] If Step 1 is completed, the employer must then invite the employee to a meeting, after which there is a possibility of an appeal and a further meeting as the last step in the process. [FN91] The modified GP applies only when employment has ended, and entails a written statement of the grievance and its basis as Step 1, and a written employer's response in Step 2. However, both parties must agree to this procedure, and an employer can refuse, insisting on the standard GP, and thus deterring employees who, for example, suffered discrimination or victimisation, have left and regard such a meeting as both distressing and futile. It might therefore be in the employer's interest to insist on the standard GP as a way of preventing an ET application. [FN92] The inequality between the new statutory demands on employers and on employees have been eloquently elaborated elsewhere. [FN93] Whereas the statutory DDPs are looser than the Acas Code of Practice, the GPs add new burdens on employees. There is nothing in the legislation to say that the formal procedures be agreed with workplace representatives. [FN94] The TUC pointed out that it is unjustifiable to deny workers their statutory rights or reduce their compensation, for example on equal pay or discrimination, because of procedural flaws, particularly since unrepresented applicants find it hard to judge at what stage they can proceed with a claim. [FN95] Judge Prophet remarked on the degradation of being debarred from a tribunal following 'a blatant disregard of his legal entitlement. Not only is this degrading for the employee, it could well be a denial of his human rights under Article 6 of the Convention. Incidentally how does an internal grievance procedure apply to a person who is no longer an employee?' [FN96] *234 And Lord Wedderburn asked, in seeking an amendment to Schedule 4 of the EA 2002 to remove discrimination, victimisation and EU rights from the ambit of the Act's section 32, 'What kind of a protection does the worker have against non-payment of wages, victimisation or harassment at work during those 28 days?' [FN97] The Disputes Resolution legislation cannot be divorced from the new Employment Tribunals Regulations, [FN98] which also came into force on 1 October 2004, and introduced a new, 8page claim form, thus formalising an application process which was previously possible without one. [FN99] A claim will be rejected unless the form is completed and risks rejection if it is not competed correctly or fails to indicate whether the relevant grievance procedure has been followed. [FN100] The Regulations prevent an application if the dispute procedures of section 32 of the EA 2002 have not been followed [FN101] and restrict application further by introducing a 'fixed period of conciliation'. This alters Acas's duty to conciliate for as long as the two parties want to continue, to fixed periods of conciliation time during which it is not permissible to start ET hearings. The exceptions are discrimination jurisdictions. Otherwise, there is a 'short conciliation period' of seven weeks (covering breach of contract, unlawful deduction of wages, rights for time off and Transfer of Undertakings Regulations), or a 'standard conciliation period' of thirteen weeks, with the possibility of a further two weeks if agreed between Acas and the parties. [FN102] This introduces a new type of rigidity into the system. The 2004 ET Regulations also expand on their 2001 predecessor by implementing the tribunal revisions of the EA 2002, which broaden the costs regime to a party's representative for reasons of 'conduct' (a move which has already deterred some CABx) and may include payment in respect of the other party's preparation time. [FN103] Now, either the 'party' or

his/her representative is liable for *235 costs of up to £10,000; [FN104] and if the parties 'agree' or if the tribunal orders 'detailed assessment in a County Court', the amount can exceed £10,000. [FN105] The order for preparation time can be made against a 'party' or their representative at the chairman's discretion, and can include the 'misconceived' criterion applicable to costs, although both costs and preparation time cannot be made against the same party in the same proceedings. [FN106] Nevertheless, this might mean that even if an applicant (or representative) is not liable to pay costs, they could be liable for the respondent's preparation time and although the party's ability to pay is included in the costs rules, the financial risk increases both to the worker and the representative, further heightening the intimidatory climate. The cost impact of preparation-time and awards against representatives are not yet known. The hurdles to accessing justice for those without professional support are daunting. The 2004 Disputes Resolution and ET Regulations are long, complex and legalistic and demand legal expertise for interpretation and application. The government's declared aim of simplicity in raising 'the standard of dispute management in the workplace' by 'developing appropriate procedures which both sides can use when problems arise' [FN107] is an unconvincing gloss on the real aim of deterrence from access to statutory rights. The procedures are also predicted to add complex verification problems to the tribunal itself, and are likely to increase the number and length of disputes, invalidating the professed rationale of cost-saving. [FN108] Chief among these are whether or not the correct grievance and/or dispute procedures have been adhered to before lodging a tribunal claim, making compensation adjustments and disagreements over costs. 5. CONCLUSION: THE STATE OF EMPLOYMENT RIGHTS UNDER NEW LABOUR During debate on the Employment Bill in 2002, critics pointed out that increasing the hurdles to reaching an ET might contravene the Human Rights Act and the European Convention on Human Rights. [FN109] Although the Joint Committee on Human Rights (JCHR) passed the Bill, Lord Wedderburn and others challenged this decision on the grounds that it had been misled by the selective use of *236 evidence from SETA 98. Reconsidering the Bill in June 2002, the 18th Report of the JCHR again endorsed it, but with reservations about the burden placed on employees by clauses 31 and 32, and possible deterrence from applying to an ET. [FN110] It then left adjudication of the compatibility of the legislation with Convention rights to fuller debate within the political process. [FN111] Yet, only one month later, the EA 2002 received its royal assent on 8 July 2002. Besides this haste through Parliament, the legislation also flew in the face of the Leggatt Report on tribunals, which had been available since March 2001. This had clearly indicated the need for greater accessibility and simplicity, finding: an overwhelming consensus in the consultation response that ET cases were becoming progressively more difficult for the unrepresented user, and that it was now impracticable for unrepresented users to prepare or present their cases in most of those which involve allegations of discrimination, or points of European law (particularly that relating to the transfer of undertakings). [FN112] The Review recommended measures 'to reduce the need for representation' and urged 'attempts to improve the informality and accessibility of the tribunal' as the cheaper alternative

to the widespread demands in the consultation process for the extension of legal aid to ET representation. [FN113] The government, however, ignored both the evidence and advice of the review, and chose instead to block the paths to justice by simultaneously increasing the complexity and linguistic impenetrability of the statutory procedure and adding a punitive financial regime to an already expensive legal advice and representation system. It is too soon to assess the operation of the EA 2002 and its ensuing 2004 disputes and tribunal regulations, but it is evident that they will 'put the heaviest burden on the weakest, unsupported applicant'. [FN114] No alterations are proposed, despite New Labour's commitment to vulnerable workers following its National Policy Forum at Warwick University in July 2004--'Labour will target abuse at the bottom end of the labour market'. [FN115] These concerns, prompted by headline news in February 2004 of the worst abuses of unprotected workers by 'gangmasters', [FN116] appear to be confined to migrant workers, with a silence about others who suffer abuse of their employment rights. Government response to the TUC's proposition, that recourse to ETs would be diminished by strengthening *237 collective representation, has been minimal. [FN117] The 2004 Employment Relations Act retains the exemption of small firms (below 21 employees) from the union recognition rights of the ERA 1999, and reforms on freedom of association and collective bargaining are minimalist and individualist, rather than collectivist in nature. [FN118] There appears to be no response to the growing calls for a 'pro-active Fair Employment Commission', as advocated by the CAB, or a Labour Inspectorate, which could both harmonise the enforcement of all individual rights, and, rather than competing with collective regulation, provide trade unions with a means to uphold labour standards, just as the Inland Revenue does for the Minimum Wage. [FN119] Such an institution was also proposed by UNISON and the Low Pay Unit to the Low Pay Commission in 2002. This would introduce a new element into British labour law, and oversee all minimum labour standards, including the National Minimum Wage. [FN120] But this seems highly interventionist for a government committed to keeping a 'flexible labour market'. New Labour has ignored research, consultation and evidence that do not suit its political agenda, while maintaining a discourse of 'modernisation' and 'fairness at work'. It has pursued a dualist programme--a 'double shuffle' [FN121]--in which weak concessions to social-democratic reforms are subordinated to a neo-liberal programme. Double-talk characterised 'Access to Justice' in 1999, which meant the opposite-restrictions to justice through rationing legal-aid. The EA 2002 used a different dualism, this time sandwiching neo-liberal restrictions to statutory rights between social democratic concessions to new rights for workers. The government has justified these policies in mainly economic terms, citing cost savings to taxpayers and employers. However, the new administrative burdens and costs of the new tribunal and dispute resolution machinery suggest saving the public purse is low on the agenda. The driving force behind the legislation is the ideology of the free market and privatisation. The vulnerability of the majority of unorganised workers does not register in the government's thinking or its programme. This continues to lift the 'burden' on business by fostering 'soft-law', the privatisation of dispute resolution and enacting legislation *238 which not only ignores, but exacerbates the inequality between capital and labour by setting basic statutory requirements for employers which will be satisfied by adherence to minimum standards, but a complex new regime for employees, with further obstacles to overcome. To what extent this policy remains impervious to the alarm-calls of a crisis in the civil justice and employment regulation system remains to be seen.

[FNa1]. Professor of the Sociology of Work in the Working Lives Research Institute, London Metropolitan University. This paper is a contribution to the ESRC project 'The Unorganised Worker, Routes to Support and Views on Representation' (Award R000239679). I am grateful for comments on earlier drafts to Paul Smith, Gary Morton Sonia McKay, Richard Dunstan (Citizens Advice Bureau) and an anonymous referee of the ILJ. [FN1]. See W. Brown, S. Deakin, D. Nash and S. Oxenbridge 'The Employment Contract: From Collective Procedures to Individual Rights', (2000) 38 British Journal of Industrial Relations 611. [FN2]. See W. Brown, S. Deakin, D. Nash and S. Oxenbridge 'The Employment Contract: From Collective Procedures to Individual Rights', (2000) 38 British Journal of Industrial Relations 611. [FN3]. This refers to workplaces employing over 25 employees; M. Cully, S. Woodland, A. O'Reilly and G. Dix, Britain at Work as Depicted by the 1998 Workplace Employee Relations Survey (London: Routledge, 1999) p 242 (referred to below as WERS 98). 2003 figures are Employment Market Analysis and Research, Trade Union Membership 2003 (London: DTI, July 2004), Tables 5 and 25. [FN4]. W. Brown, S. Deakin, M. Hudson, C. Pratten, and P. Ryan, 'The Individualisation of Employment Contracts in Britain', Employment Relations Research Series 4 (London: DTI, 1999). [FN5]. Information and Consultation of Employees Regulations 2004, SI 2004/3426, in force 6.4.05. [FN6]. For background to and company case studies of non-unionism see T. Dundon and D. Rollinson, Employment Relations in Non-Union Firms (London: Routledge, 2004). [FN7]. W. Brown, 'The Future of Collectivism in the Regulation of Industrial Relations' (2004) 2 Human Resources and Employment Review 4 at 200. [FN8]. National Minimum Wage Act 1998 (c 39); The Working Time Regulations 1998 SI 1998/1833; Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 SI/1551; The Maternity and Parental Leave etc Regulations1999 SI 1999/3312 and 2002 amendment SI 2002/2789; The Paternity and Adoption Regulations 2002, SI 2002/2788. [FN9]. Employment Act 2002, 2002 Chapter 22. [FN10]. The Flexible Working (Procedural Requirements) Regulations 2002 (SI 2002/3207) and the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 (SI 2002.3236). Both commenced 6.4.03. [FN11]. See P. Smith and G. Morton, 'New Labour's Reform of Britain's Employment Law: The Devil is Not Only in the Detail but in the Values and Policy Too' (2001) 30 BJIR 123. On the 1998 Working Time Regulations. SI 1998/1833, C. Barnard 'The Working Time Regulations 1998' (1999) 28 ILJ 75 discusses the 'UK policy of copy out (or cop out)' of the

Working Time Directive 93/104/EC, and on Working Time Regulations 1999, SI 1999/3372, the amendment further easing the individual opt-out, C. Barnard 'The Working Time Regulations 1999' (2000) 29 ILJ 167. The Fixed Term Worker Directive (99/70/EC) applies to all workers, but the UK government implemented it as the Fixed Term Employees (Prevention of less Favourable Treatment) Regulations 2002, SI 2002/3034, commencing 6.4.02.

[FN23]. Routes to Resolution, op cit (London: DTI, 2001) para 2.11, based on CIPD Survey Report 14, Recruitment, June 2000.

[FN12]. D. Gallie, M. White, Y. Cheng and M. Tomlinson, Restructuring the Employment Relationship (Oxford: Oxford University Press, 1998) p 107. On the decline in industrial action, see Cully et al, op cit, 1999 (WERS 98) p 245. Also, A. Bryson and D. Wilkinson, Collective Bargaining and Workplace Performance: An Investigation Using the Workplace Employee Relations Survey 1998, Employment Relations Research Series 12 (London: DTI, 2001) p 1.

[FN26]. Citizens Advice Fairness and Enterprise: The CAB Service's Case for a Fair Employment Commission, (London: National Association of Citizens' Advice Bureaux, 2001), N. Burkitt, Workers' Rights and Wrongs: A New Approach to Employment Rights and Support for Employers (London: IPPR, 2001) p 18 and K. Ewing, 'Labour Law and Industrial Relations' in P. Ackers and A. Wilkinson (eds) Understanding Work and Employment: Industrial Relations in Transition (Oxford: Oxford University Press, 2003). The exception is the Inland Revenue which enforces the National Minimum Wage.

[FN13]. The 2000-01 peak was partly due to 12,000 part-time worker pension cases under the Sex Discrimination jurisdiction. For 2002 see ETS Report and Accounts, 2002-03. On ET workload, Findings from the Survey of Employment Tribunal Applications 2003, Employment Relations Series 33 (London: DTI, 2004) p 7 and on impact of 2003 new antidiscrimination legislation on religion or belief and sexual orientation, ETS Annual Report 2003-04, p 2. [FN14]. See Cully et al, op cit, 1999 (WERS 98) p 129, and Routes to Resolution: Improving Dispute Resolution in Britain (London: DTI, July 2001) para 1.4. [FN15]. See H. Genn, Paths to Justice: What People Do and Think About Going to the Law (Oxford and Portland, Oregon: Hart, 1999). [FN16]. N. Meager, C. Tyers, S. Perryman, J. Rick and R. Willison, 'Awareness, Knowledge and Exercise of Individual Employment Rights. Employment Relations Research Series 15 (London: DTI, 2002) p 190. [FN17]. The survey is part of the author's ESRC project, 'The Unorganised Worker: Routes to Support, Views on Representation'. The 'unorganised' comprise the non-unionised and union members in workplaces without union recognition or collective bargaining coverage. [FN18]. Citizens Advice Annual Report 2003/04 (London: Citizens Advice Bureau, 2004) p 13 and Acas Annual Report, 2004. [FN19]. Routes to Resolution, op cit (London: DTI, 2001) para 1.6, 1.7 [FN20]. The Task Force is a Cabinet Office appointed private sector body drawn from the private sector. See http:// www.brtf.gov.uk/pressreleases/2004/appoint.asp. [FN21]. S. McKay 'Shifting the Focus from Tribunals to the Workplace' (2001)30 ILJ 332. [FN22]. Routes to Resolution, op cit (London: DTI, 2001) para 3.4. Research by J. Earnshaw, J. Goodman, R. Harrison and M. Marchington. Industrial Tribunals, 'Workplace Disciplinary Procedures, and Employment Practice', Employment Relations Research Series 2 (London: DTI, 1998) shows poorly unionised workplaces have inadequate internal dispute mechanisms.

[FN24]. J. Earnshaw et al, op cit (1998). [FN25]. Cully et al (1999) op cit (WERS 98) pp 129, 136 and 245 for detailed discussion.

[FN27]. Employment Tribunal System Taskforce, Moving Forward: the Report of the Employment Tribunal System Taskforce 2002, p 84, para 8.70. [FN28]. Citizens Advice, Empty Justice: The Non-Payment of Employment Tribunal Awards. September CAB Evidence (London: Citizens Advice Bureau, 2004). On the enforcement of reinstatement and re-engagement orders and compensation Employment Rights Act 1996 section 117. [FN29]. Citizens Advice, Hollow Victories: An Update on the Non-Payment of Employment Tribunal Awards, March CAB Evidence (London: Citizens Advice Bureau, 2005). Figures based on approaching 460 CABx, with responses from 106. Reported, Financial Times, 31.3.05. [FN30]. R. Blackburn and M. Hart, Small Firms' Awareness and Knowledge of Individual Employment Rights. Employment Relations Research Series 14 (London: DTI, 2002) p xv. See P. Edwards, M. Ram and J. Black, The Impact of Employment Legislation on Small Firms: A Case Study Analysis, Employment Relations Research Series 20 (London: DTI, 2003) p 8, on the importance of informal practices. [FN31]. The Working Time Directive 93/104/EEC. On Britain, F. Neathey and J. Arrowsmith, Implementation of the Working Time Regulations, Employment Relations Research Series 11 (London: DTI, 2001); more recent evidence in C. Barnard, S. Deakin and R. Hobbs, 'Opting Out of the 48-Hour Week: Employer Necessity or Individual Choice? An Empirical Study of the Operation of Article 18(1)(b) of the Working Time Directive in the UK' (2003) 32 ILJ 224. [FN32]. J. Earnshaw et al (1998) op cit. [FN33]. West Midlands Low Pay Unit, Kept in the dark? Individual Awareness of Employment Rights in the West Midlands, Briefing Paper 51 (2001) p 15. [FN34]. Citizens Advice Improving Employment Dispute Resolution: The CAB Service's Response (London: National Association of Citizens' Advice Bureaux, 2001); Citizens Advice, Fairness and Enterprise: The CAB Service's Case for a Fair Employment Commission (London: National Association of Citizens' Advice Bureaux, 2001).

[FN35]. The National Minimum Wage. Making a Difference: The Next Steps. Third Report of the Low Pay Commission (London: Low Pay Commission, 2001). [FN36]. N. Meager et al, op cit (2002) p 24. This was a national telephone survey of 5,000 people, taking a random sample from the general population, with a 20% response rate leading to 1,000 completed interviews. [FN37]. N. Meager et al, op cit (2002) p 181. [FN38]. Author's ESRC research on the 'Unorganised Worker'. [FN39]. H. Genn, op cit (1999) p 91. The base number for those with employment problems is small (n=55). Among these, 78% sought advice, and the first port of call was trade unions for 27% and CABx for 23% (p 89). [FN40]. N. Meager et al, op cit (2002) p 185. Caution is needed in interpretation: only 16.2%, or 164 individuals, of the sample came into this category. [FN41]. Finding from the Survey of Employment Tribunal Applications 2003, Employment Relations Research Series 33 (London: DTI, 2004) p 108, Table 4.11.

[FN50]. Information from interviews with CABx advisors, and Citizens Advice, Geography of advice (2004) op cit, p 15. [FN51]. Citizens Advice, Geography of advice (2004) op cit, p 15. [FN52]. Findings from the Survey of Employment Tribunal Applications 2003, op cit, p 109. [FN53]. Citizens Advice, The Paperless Waiting Room, April evidence (London: Citizens Advice Bureau, 2004); Citizens Advice, Empty Justice, op cit (2004) p 3. [FN54]. Internet Access, Individuals and Households, Expenditure and Food Survey (National Statistics, December 2003) www.statistics.gov.uk/pdfdir/intcl203.pdf. [FN55]. Findings from the Survey of Employment Tribunal Applications 2003, op cit, p 109. [FN56]. For criticism, especially the lack of public example, see B. Hepple, 'Enforcement: The Law and Politics of Cooperation and Compliance' in B. Hepple (ed), Social and Labour Rights in a Global Context: International and Comparative Perspectives (Cambridge: Cambridge University Press, 2003) p 250; T. Colling, 'No Claim. No Pain? The Privatization of Dispute Resolution in Britain' (2004) 25 Economic and Industrial Democracy 567.

[FN43]. Citizens Advice Annual Report, 2002/03, p 17

[FN57]. Employment Rights (Dispute Resolution) Act 1998 came into force in Acas Arbitration Scheme (England and Wales) Order 2001 SI 2001/1185, 21.5.2001 and was revoked by Acas Arbitration Scheme (Great Britain) Order 2004, SI 2004/753, Article 3, as from 6.4.2004. The Acas (Flexible Working) Arbitration Scheme (England and Wales) Order 2003, SI 2003/694, was enforced 6.4.2003 and revoked by Acas (Flexible Working) Arbitration Scheme (Great Britain) Order 2004, SI 2004/2333.

[FN44]. Author's correspondence with Citizens Advice Bureaux Social Policy Officer, August 2004, for ESRC 'Unorganised Worker' project.

[FN58]. Dispute Resolution in Britain: A Background Paper (London: DTI, 2001) p 8. Figures for 1998.

[FN45]. H. Genn, op cit, pp 76, 89. See also P. Pleasence, A. Buck, N. Balmer, R. O'Grady, H. Genn and M. Smith, Causes of Action: Civil law and Social Justice (London: The Stationery Office, 2004) ch 3.

[FN59]. Findings from the Survey of Employment Tribunal Applications 2003, op cit, p 105.

[FN42]. J. Richard, 50 Years of the CAB (London: Citizens Advice Bureaux, 1989), J. Citron, The Citizens Advice Bureaux, for the Community, by the Community (London: Pluto Press, 1989).

[FN46]. CAB Service submission to the Employment Tribunal Taskforce (London: Citizens Advice, 2002) p 1.

[FN60]. Acas dealt with just 23 cases in the first full year of the operation of the Scheme and only 10% of unions surveyed by the TUC in 2004 expressed themselves in favour of the arbitration alternative. See TUC Focus on Employment Tribunals trade union trends survey 04/02 (London Trade Unions Congress, 2002) p 4.

[FN47]. Legal Services Commission Annual Report, 2001-02 (London: The Stationery Office) p 8, Law Society. Access Denied (London: The Law Society, July 2002) p 4.

[FN61]. The Acas Arbitration Scheme: An Evaluation of Parties' Views, (London: Acas, 03/04) available at http://www.acas.org.uk/strategy/research_ papers.html.

[FN48]. Citizens Advice, Geography of Advice: An Overview of the Challenges Facing the Community Legal Service, February, Evidence Report (London: Citizens Advice Bureau, 2004) p 12.

[FN62]. T. Colling (2004) op cit, p 570.

[FN49]. Tribunals for Users One System, One Service Report of the Review of Tribunals by Sir Andrew Leggatt, Part II. Employment Tribunals and the Employment Appeal Tribunal, para 8 (London: Department of Constitutional Affairs, March 2001), http://www.tribunalsreview.org.uk.

[FN63]. Lord McCarthy, HL Debates (26.2.02) Hansard, col 1369, referring to the passage of the Employment Bill 2002. [FN64]. Regulatory Impact Assessment: Employment Bill 2001 (DTI 2001) p 7, para 30. [FN65]. Routes to Resolution, op cit (DTI, July 2001) para 1.5 and 1.6.

[FN66]. S. Burgess, C. Propper and D. Wilson, Explaining the Growth in the Number of Applications to Industrial Tribunals, 1972-1997, Employment Relations Research Series 10 (London: DTI. 2001) pp 2, 57. [FN67]. Routes to Resolution, op cit (DTI, July 2001) para 2.6. [FN68]. B. Hepple and G. Morris. 'The Employment Act 2002 and the Crisis of Individual Employment Rights' (2002) 31 ILJ 251, Lord McCarthy HL debates (26.2.02) Hansard, col 1371. Lord Wedderburn HL debates (11.6.02) Hansard col 247, TUC Response to Government Consultation, Routes to Resolution: Improving Dispute Resolution in Britain (London: TUC, October 2001); Citizens Advice Improving Employment Dispute Resolution, op cit (2001). IDS Brief 705, 'Resolving employment disputes--getting your head round the revolving statistics (London: Income Data Services, 2002) p 2. [FN69]. Findings from the 1998 Survey of Employment Tribunal Applications, op cit, p 24 [FN70]. Findings from the 1998 Survey of Employment Tribunal Applications, ibid at 13. [FN71]. Ibid at viii. [FN72]. H. Genn, op cit (1999) pp 38-43, 57, 112. [FN73]. Citizens Advice, Improving Employment Dispute Resolution, op cit (2001); Citizens Advice, Fairness and Enterprise, op cit (2001).

[FN82]. Legal Action Group Response to Routes to Resolution (London: Legal Action Group, October 2001) pp 9, 12-16. [FN83]. EA 2002. s 31(2), (3), (4). [FN84]. EA 2002 (Dispute Resolution) Regulations, regulation 3(2). [FN85]. EA 2002 s 34, (2) amends s 98 of the Employment Rights Act (ERA) 1996 on procedural fairness to add a new section s 98A(1) so that an employee will be treated as being unfairly dismissed if the statutory DDP was not completed, and this was the employer's fault. [FN86]. Section 34 of EA 2002 inserts a new s 98A(2) into the ERA 1996. See B. Hepple and G. Morris, op cit (2002) p 264. [FN87]. Polkey v A.E. Dayton Services Ltd [1988] ICR 142, in which the House of Lords ruled that the employer's claim that procedural fairness would have made 'no difference' to the ultimate decision to dismiss could not be taken into account by tribunals in mitigation of unfairness. [FN88]. Routes to Resolution, op cit (DTI. July 2001) p 36. Criticisms include TUC, Responses to Government Consultation, Routes to Resolution, op cit (2001) para 1.36. Citizens Advice. Improving Employment Dispute Resolution: The CAB Service's Response, op cit (2001) p 7.

[FN74]. Tribunals for Users One System, One Service, op cit, Part II, Employment Tribunals and the Employment Appeal Tribunal, para 24.

[FN89]. Findings from the Survey of Employment Tribunals Applications 2003, p xviii; Cully et al (1999) p 77 found that while 91% of workplaces had formal grievance procedures in 1998, only 30% of these had been activated.

[FN75]. Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001, SI 2001/1171 Schedule 1, rule 7(4).

[FN90]. EA 2002, s 32(2) (3) (4) and Schedule 2, Part 2. Elaborated in EA 2002 (Dispute Resolution) Regulations 2004, SI 2004/752 regulation 3.

[FN76]. 'Frivolously' was dropped. Employment Tribunals Regs 2001, Schedule 1, rule 14(1). Also, Regulation 2, entitled 'interpretation' says that 'misconceived' includes having 'no reasonable prospect of success'.

[FN91]. EA 2002, Schedule 2, para 7. EA 2002 (Dispute Resolution) Regulations 2004, regulations 12 and 13.

[FN77]. Employment Tribunals Regs 2001, Schedule 1, rule 14(3)(a). [FN78]. Legal Action Group Briefing: Changes to Employment Tribunal Costs Rules (London: Legal Action Group, 2001). [FN79]. TUC Responses to Government Consultation Routes to Resolution, op cit (2001) para 1.57. [FN80]. Findings from the Survey of Employment Tribunal Applications 2003, op cit, p 67. [FN81]. Citizens Advice, 'Employment Tribunals: The Intimidatory Use of Costs Threats by Employers' Legal Representatives', March CAB Evidence (London: Citizens Advice Bureaux, 2004) p 3.

[FN92]. IDS, Statutory Disciplinary and Grievance Procedures. Employment Law Supplement (London: Income Data Services, 2004) p 52. [FN93]. B. Hepple and G. Morris (2002) 31 ILJ 245. [FN94]. S. McKay (2001) op cit, p 332. [FN95]. TUC Responses to Government Consultation Routes to Resolution, op cit (2001) para 1.22 and 1.31. [FN96]. His Hon Judge John Prophet, President of the ETs (England and Wales), Memorandum to Joint Committee of Human Rights, Twelfth Report, United Kingdom Parliament. March 2002, Appendices para 7. The Human Rights Act 1998, Schedule 1, article 6, the 'right to a fair trial'. [FN97]. Lord Wedderburn, HL debates (11.6.02) Hansard cols 244, 248.

[FN98]. Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 SI 2004/1861. [FN99]. This was to have been mandatory from April 2005, although following delays in its electronic version, was set back to 1 October 2005 in the Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2005, SI 2005/435 para 2. [FN100]. Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, SI 2004/1861 Schedule 1, rule 1(4)(h). See critique by Chris Chapman, Industrial Law Society Spring Conference May 2004, 'Employment Tribunal Reforms: An integral Part of Workplace Dispute Resolution or an Economy Measure? Do They Achieve the Ideals of Access to Justice, Fairness and Efficiency, and User-Friendly Public Service?' at http:// www.industriallawsociety.org.uk/papers/chapmanpaper.html, p 8. [FN101]. ET 2004 Regulations Schedule 1, rule 1(8) states a claim will not be accepted by the Secretary if section 32 EA has been breached, although Schedule 1, rule 1(8) then leaves the decision to the chairman. [FN102]. ET Regulations 2004, Schedule 1 rule 22(5), (6), (7). [FN103]. EA 2002 section 22(1) amends section 13 of the Employment Tribunals Act 1996. In particular Section 22(1B) (to award costs to representatives) and Section 22(2) (payment for preparation time). [FN104]. The ET 2001 Regulations Schedule 1 rule 14(1) (including the 'misconceived' criterion) is amended to include the representative in the ET 2004 Regulations Schedule 1 rule 40(3). [FN105]. ET Regulations 2004 Schedule 1, rule 41(1) (b) and (c). [FN106]. ET Regulations 2004 Schedule 1, rule 46. [FN107]. Routes to Resolution: Improving Dispute Resolution in Britain, op cit (DTI, July 2001) para 3.4. [FN108]. B. Hepple and G. Morris, op cit (2002) p 257; TUC Responses to Government Consultation Routes to Resolution, op cit (2001) p 4; T. Colling, op cit (2004) p 574; C. Chapman, op cit (2004) p 9. [FN109]. Article 6 prohibits disproportionate limitations to access to justice. See His Hon Judge Prophet, Memorandum to Joint Committee of Human Rights. Twelfth Report, op cit. Appendices, para 5. [FN110]. Eighteenth Report of Joint Committee of Human Rights, United Kingdom Parliament. June 2002, para 24. [FN111]. Ibid, paras 25, 26. [FN112]. Tribunals for Users One System, One Service. Part II. Individual Tribunals, para 9.

[FN113]. Ibid, para 12. [FN114]. Lord McCarthy, HL debates (26.2.02) Hansard, col 1370. [FN115]. The Labour Party 'What is Labour Doing for Working People?' http:// www.labour.org.uk/index.php?id=workingpeople04. [FN116]. This reported the drowning of 18 Chinese cockle-pickers in Morecambe Bay in February 2004. [FN117]. TUC, Response to Government Consultation, 'Routes to Resolution', op cit (2001) para 1.2. [FN118]. A.L. Bogg, 'Employment Relations Act 2004: Another False Dawn for Collectivism?' (2005) 34 ILJ 72. [FN119]. W. Brown, 'The Future of Collectivism in the Regulation of Industrial Relations', op cit, p 201. See N. Burkitt, op cit (2001), Citizens Advice Fairness and Enterprise, op cit (2001) p 3. Citizens Advice, Somewhere to Turn: The Case for a Fair Employment Commission (2004). This is endorsed by the National Group on Homeworking, Legal Action Group, One parent families, West Midlands Employment and Low Pay Unit, Free Representation Unit, and Oxfam. [FN120]. B. Simpson, 'The National Minimum Wage Five Years On: Reflections on Some General Issues' (2004) 33 ILJ 40. [FN121]. S. Hall, 'New Labour's Double-Shuffle' (2003) Soundings 24.