The Employment Act 2002 and the Crisis of Individual Employment Rights

The growth of individual employment rights, as collective procedures have declined, has created an irreversible demand for their enforcement. Parts 2 and 3 of the Employment Act 2002 signify a moment of crisis as the UK, in common with several other European countries, tries to limit the cost of these rights. The British response is essentially to attempt to privatise enforcement through management‐controlled procedures in preference to independent public tribunals. This article argues that these Parts of the Act are based on the false premise that there has been an increase in litigiousness on the part of employees who have not attempted to resolve the problem directly with the employer in the first instance. The Act is likely to increase the number and length of disputes rather than to reduce them. The new statutory minimum disciplinary and grievance procedures, enacted at a time when the highest court has decided to treat statutory rights as a ceiling above which the common law cannot rise, will reduce the procedural protection at present afforded to many employees. The provisions of the Act imposing sanctions on employers and employees who do not follow the minimum procedures, reviving the rule that dismissals in breach of procedure are not unfair if fair procedure would have made ‘no difference’, widening the circumstances in which costs may be awarded and restricting the duty of ACAS to conciliate to a fixed period, impose unjustified barriers on access to justice particularly for the most vulnerable workers. An opportunity has been missed to promote alternative dispute resolution by an expansion of independent conciliation, mediation and arbitration.