Part One of the Employment Act 2008: 'Better' Dispute Resolution?

Abstract

This article will analyse Part One of the Employment Act 2008 on employment dispute resolution and in particular the repeal of the statutory workplace dispute resolution procedures only four years after Regulations implemented them. It will begin by considering the background of increasing tribunal caseload that led to their introduction in the first place. Later sections will examine the replacement of these statutory procedures with what Ministers described as the triple package of a new Advisory Conciliation and Arbitration Service (‘ACAS’) helpline, increased ACAS conciliation and a revised ACAS Code. The language of repeal and the Act's reintroduction of the Polkey line of cases might suggest that dismissal law is merely reverting back to its pre October 2004 position. This article will, however, conclude that Part One does not just ‘simplify’ dismissal law, or ‘return’ the law to September 2004 or indeed to any other time frame. Instead, it weakens key procedural protections for employees potentially by conflating the 2002 Act's different tests of ‘automatically’ unfair and ‘ordinarily’ unfair dismissals, for example. Lowering standards of procedural justice is significant in itself but this takes added importance for dismissed employees as tribunals rarely investigate the substantive fairness of dismissals.