Or mortally wounded, at any rate. The witch in question is the statutory dispute resolution regime introduced by Part 3 of the Employment Act 2002 and the Employment Act 2002 (Dispute Resolution) Regulations 2004. This is the set of rules by which employees cannot bring claims (most claims other than dismissal) to the employment tribunal unless they have first raised a grievance with the employer and then waited 28 days; and by which awards are adjusted up or down if statutory minimum procedures are not complied with on either side. The proposal to introduce the regime was strongly resisted by almost everyone who responded to government consultation, but it was brought in anyway. To the extent that the criticisms raised in the consultation were addressed at all, they were addressed by making the already Byzantine draft provisions even more complicated.
The predictable – and predicted – chaos ensued. The EAT had to tie itself in knots trying to make some kind of sense of provisions that had not been properly thought out and at various points simply did not work. Lawyers, advisers, trade unions, industry and the judiciary were united in condemning the regime. There was further consultation in which everyone who had told the government on the first consultation that the regime was a bad idea when it was proposed pointed out that implementation had merely served to demonstrate that it was an even worse idea than they had thought.
The Employment Bill, introduced in the House of Lords last week after an elaborate consultation culminating in the Gibbons review, proposes wholesale repeal. The dialogue belongs in the realms of panto:
Government: Shall we do something amazingly stupid?
Consultees [shouting all together]: No!
Government [spending lots of money]: What did you say?
Consultees [shouting even louder]: NO!
Government: Ok then, we’ll do it.
[COMEDY SONG AND DANCE ROUTINE: The Change Management Waltz, in which tribunal judiciary, staff, advisers and litigants whirl around and trip over piles of paper and one another. A chorus of Change Managers sings The output will be a strategic direction.]
Government: There! Do you like it?
Consultees: No, we hate it! We told you it was a terrible idea. You didn’t listen.
Government: Oh dear! We thought you’d like it. Whatever shall we do?
Consultees: Repeal it!
Government: Tell you what [slaps its thigh and winks] – let’s commission a review!
Consultees [getting tired]: Go on then.
Michael Gibbons: The Government has asked me to ask you what you think of the dispute resolution regime…
Consultees [wearily]: We still hate it.
Michael Gibbons: It had better be repealed.
Government: Oh. Don’t they like it? All right then, we’ll repeal it.
It would be interesting to know the total cost of this performance.
(No criticism of Michael Gibbons or his review is intended, incidentally: he did the job that he was asked to do fast and efficiently, and came up with the right answer.)
Thanks to Daniel Barnett, one of whose email bulletins brought the glad tidings to us.