Some of the government's recent proposals for reform in the field of employment dispute resolution are welcome, but others -- if enacted in their present form -- will cause consternation among many employment law practitioners.The president of the Board of Trade has published legislation, an Employment Rights (Dispute Resolution Bill), in draft form for consultation, in accordance with the policy of seeking to improve the quality of legislation before it is introduced to Parliament.

The Law Society's employment law committee (ELC) has responded to the proposals in detail on behalf of the solicitors' profession.The government's aim is to implement proposals made in the 1994 green paper 'Resolving employment rights disputes: options for reform', and it has secured wide support.

The draft Bill amends existing legislation -- notably the Employment Rights Act 1996 and the Industrial Tribunals Acts 1996 -- both of which came into force on 22 August 1996.The most significant change proposed is that the Advisory, Conciliation and Arbitration Service (ACAS) should be able to offer and provide arbitration of unfair dismissal claims.

This would be available as an alternative to an industrial tribunal hearing and would be voluntary on both sides.

The arbitration would be arranged and paid for by ACAS, which would maintain a list of people able to arbitrate in individual employment rights disputes.

The consultation document includes a draft outline of a scheme for arbitration by ACAS in unfair dismissal cases.

It is made clear that this is provided for illustrative purposes and is not all-encompassing.

Nor is it a proposal made by ACAS.

It is suggested that there would be two main methods of entry to the scheme.

One route would be via a compromise agreement and the other route would be via a written agreement after a conciliation officer had taken action.

The reference to ACAS should be made within three months of the date of the agreement and, once ACAS had received a valid request for arbitration, the aim would be that arbitration was completed within two months.

There would be no right of appeal against the arbitrator's award on a point of law.

The intention of this proposal would be to reduce the tribunal's caseload, whilst offering the other parties to the dispute a more informal, speedier, private and less expensive means of settling differences.

There is support for this proposal from employers and trade unions, and the ELC considers that the take-up for unfair dismissal arbitration is likely to be considerable.

However, the detailed proposals go beyond unfair dismissal cases and could enable any legal right justifiable before an industrial tribunal to be subjected to arbitration.This could be worrying.

It is strongly arguable that the process of drawing inferences in discrimination cases is not susceptible to what some people feel are the unsubtle techniques of industrial arbitration.

Such cases usually require statistical evidence and careful cross-examination.

There are other potential difficulties.

What test will an arbitrator apply when determining the fairness of dismissal? If the 'band of reasonableness' test applied by tribunals is adopted, arbitration may tend to duplicate the present system.

If a rough-and-ready test, based on the arbitrator's perception of 'good employment practice' is adopted, the inevitable result would be a loss of predictability that many employers would find unattractive.

The scheme might also become something of a poisoned chalice as far as ACAS is concerned.

The service has spent many years bu ilding up its reputation for impartiality.

There is a possibility that, if it began to arbitrate upon the fairness of dismissals, that reputation might be called into question.

In addition, tribunals were supposed to be informal, cheap, speedy and accessible.

The search for a superior alternative may prove to be a fruitless exercise -- especially at a time when tribunals, generally, are dealing with cases more rapidly than was the case a few years ago.An equally controversial proposal is to enable a tribunal which determines unfair dismissal cases to take into account, when awarding compensation, whether an employee attempted to use an existing in-house appeals procedure, and whether an employer facilitated the use of such a procedure.

The aim is to encourage greater use of internal procedures, with a view to increasing the number of cases settled without recourse to a tribunal hearing.

The ELC's view is that the proposal exaggerates the benefits to be gained from the use of appeals procedures.It is proposed that tribunals should be allowed to decide cases on the basis of written evidence alone.

This is a possible way of streamlining the procedures, as both parties' consent would be required.

The ELC accepts that it may be appropriate for some cases to be dealt with on paper.

The obvious difficulty would be identifying cases suitable for disposal.

It is debatable whether the consent of the parties should be the sole criterion; for instance, the consequences of consenting to adjudication on paper could be misunderstood by many unrepresented applicants and small businesses.

The ELC considers that consent must be informed, especially as the draft Bill provides that the consent, once given, cannot be withdrawn.The government also proposes to increase the number of jurisdictions under which tribunal chairmen have discretion to 'sit alone' without lay members.

The additional categories are described in the consultation document as 'certain technical cases'.

The most common will be disputes over redundancy payments, which currently account for about 10% of the tribunal's caseload.A number of the planned changes will command widespread support.

It seems sensible to change the name of the tribunals to 'employment tribunals'.

The qualifying sources of advice in compromise agreements are to be extended to any independent person, provided that the advice is covered by a policy of insurance to cover the risk of negligence.

In addition to lawyers, this would allow others with relevant expertise, such as trade unions or advice agencies, to give advice on compromise agreements.

The Law Society has not taken a parochial stance on this proposal, which it regards as a practical step.

The proposal to remedy the uncertainty about whether the professional indemnity arrangements of solicitors are comprehended within the expression 'policy of insurance' in s.203 of the Employment Rights Act 1996 is also welcome -- but the ELC has put forward suggested wording to ensure that agreements already entered into are not threatened.The proposal that ACAS conciliation officers should be able to act in redundancy payment cases also seems eminently sensible.The proposed appointment of legal officers to the tribunals, in order to enable chairmen to devote more of their time to the business of hearing tribunal cases, is interesting.

In England and Wales, legal officers would be either 'authorised advocates' or 'authorised litigators' -- as defined under s 119 of the Courts & Legal Services Act 1990.

They would be specifically recruited for the tas k.

However, it is the ELC's view that a legal officer should not have the authority to make any final determination in a case, other than when no notice of appearance has been entered