Whitehall is right to abandon the controversial Dispute Resolution Regulations.

Ever since the ill-fated Dispute Resolution Regulations 2002 were first introduced, there has been a groundswell of opinion, led by the Employment Lawyers Association (ELA), to have them reversed.

In December 2006, only two years after the introduction of the regulations, the then Secretary of State for Trade and Industry, Alistair Darling, appointed Michael Gibbons to chair an independent inquiry to find out what had gone wrong. He was to point the way, so that the secretary of state could ‘adapt’ the regulations if they were not working as intended.

Gibbons reported with commendable speed. Within three months he had produced his findings and, when his report was published (March 2007) the government produced a lengthy consultation paper. A substantial number of replies were received.

There was then a substantial delay while the government decided on its chosen course. Presumably this was down to the fact that there had to be substantial discussion at a political level before a clear view emerged as to the way ahead.

New regimeOnly now is the new regime being revealed. First, we have had the Employment Bill, published in December 2007 and currently working its way through Parliament.

Chief among its provisions is the repeal of the Dispute Resolute Regulations and the creation of an enhanced new role for ACAS.

As part of the process, last month ACAS released in draft form its new statutory code. It is designed to be non-prescriptive and flexible. It will be accompanied by non-statutory guidance, which has just been published.

Anticipating the changes, on 22 May Gibbons was asked to address the ELA national conference in London. As if on cue, two days beforehand the government finally released its long-awaited response paper, which contains its blueprint for the future.

Few are going to disagree with many of its conclusions. Chief among them is the concession that the Dispute Resolution Regulations need to be abandoned in their entirety. Other proposals may be more controversial, such as hearings in relation to certain matters to come before employment judges sitting alone. There is also the idea of having an expanded government advice service to help potential claimants, such as those who are unrepresented. Who will staff such advice lines, how qualified they will be, and how consistent the delivery of that advice will be from region to region are obvious questions.

The government may now appreciate that there can be a marked difference between perception and reality when it comes to resolving employment disputes. Yes, it may seem madness to commit substantial resources to unlawful deduction from wages claims, for example, but try telling that to a security guard on a low wage who has not been paid for two weeks in disputed circumstances. Will he be satisfied with a truncated tribunal for the purposes of the hearing of his dispute?

Disputes and mediationSimilarly, there may well be clear logic to seeking to have disputes mediated (and therefore settled) long before they ever see the light of a lawyer’s office, let alone a court or tribunal.

However, the reality is that many people are simply not ready to agree settlement until shortly before trial. They want to see the other side’s documents, their witness statements, and quite often to feel the heat of the imminent prospect of a visit into the witness box at trial, before they are likely to compromise. Employment lawyers know, sometimes, that is just the way it is.

None of this is to say that employment lawyers do not appreciate and value the attempts made by the government and Gibbons to right what went so horribly wrong in 2004.

It is just that we must ensure the remedial process does not swap one set of problems for another.

Richard M Fox, a partner at Kingsley Napley, sits on the management committee of the Employment Lawyers Association