Tribunals and Other Forms of Dispute Resolutions

What are employment tribunals?

• A Branch of the Court System to deal with disputes between the citizen and the State, or to deal with disputes between 2 individuals

• They are an independent panel and are separate from the court system, but they do make legally binding agreements/documents

• It is less formal and operate in specialised areas

Who sits in a Tribunal?

Tribunals are composed of a legally trained chairperson (lawyer for at least 7 years) and 2 lay persons who are specialists in that field

Under which statute are Employment Tribunals governed by and what are 3 examples of unlawful treatment they might hear?

Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013

May hear cases such as:

• Unfair dismissals

• Discrimination

• Unfair deductions from pay

What is encouraged of parties before they undergo a tribunal?

To go through mediation (ADR) such as ACAS to resolve their dispute

How do you make a claim for a Tribunal?

Complete an ET1 claim form to an employment tribunal if you think you have been treated unfairly by your employer or trade union

How do Tribunals work?

• You will present your case to the tribunal (can be a lawyer, family member or friend instead as a representative)

• The respondent will also present their case against you

• These are normally held in office buildings and the hearings are held in individual tribunals rooms

Which side goes first at a Tribunal?

The judge will decide, however:

• If the case is about an unfair dismissal claim, the employer usually goes first

• If the case is about a discrimination claim then the claimant will go first

Normally the claimant would give evidence first

Most claims the employer goes first

What happens when it is the employer’s turn at the Tribunal?

• They will be asked questions and asked for evidence or call their witnesses

• If you do not have a representative the judge will ask if you’ve got any questions you would like to ask the witnesses→ This is called cross-examination

• Claimant does not have to get the witness to admit they are wrong

What happens at a Tribunal, after all the evidence has been heard?

• The Representatives of both sides will sum up their case (Closing Submissions)

• The tribunal will then adjourn (resume later to make a decision) or in some cases give its decision immediately

• A collective decision is then made and sent out in writing

• If either side is dissatisfied, they will ask the panel to review the decision within 14 days

Will the claimant have to pay any costs?

• The claimant will not have to pay any fees to make an employment tribunal claim

• If the employee(claimant) wins, then the employer will pay

• If the employer wins, then you do NOT have to pay them but may have to pay for their legal representation

If there is an employment tribunal appeal, what 2 things will they either do after considering the grounds for appeal?

• Arrange a hearing date

OR

• Order preliminary hearing to decide if appeal may proceed to a full hearing

Employment tribunal appeal claims will not succeed unless what?

There is a legal point which has legal merit in order to allow the case to proceed to a full hearing

What is the employment tribunal hierarchy?

Employment Tribunal → Appeals Tribunal → Court of Appeal (Civil Division) → Supreme Court

What are 4 advantages of Employment Tribunals?

• Cost

• Speed

• Informality

• Expertise

What is meant by Cost?

• Legal Representation is not essential and tribunals do not charge fees for entering a claim

• Each party usually pays their own costs rather than the losing party paying for the winning

• Public funding is available for a few tribunals such as Mental Health Tribunals

What is meant by Speed?

• Tribunal cases are usually heard quickly

• The hearing date is fixed within a short period of time of the start of the claim, providing details of the place, date and time

• The final Hearing is usually completed within one day

What is meant by Informality?

• Two of the tribunal members are lay people and neither they nor the chairperson wear an official formal outfit, unlike judges

• This allows a more relaxed environment as the parties involved can present their case confidently without the need for legal representation

What is meant by Expertise?

• Members of a tribunal and its chairperson will usually have expertise in the subject matter of dispute

• In an Employment Tribunal, the chairperson will be a judge or an experienced lawyer

• The Lay people have practical experience of business due to their respective connections with employees and employers

What are 3 disadvantages of Employment Tribunals?

• Lack of Public Funding

• Formality since the Frank’s Committee

• Delay

What is meant by Lack of Public Funding?

• Generally, Public funding is not available for legal representation before a tribunal

• Meaning the more financially disadvantaged members of society may not be able afford legal representation

  • For example, In an Employment Tribunal, the employer will more likely be able to afford a lawyer, while the employee (claimant) may not, especially if they have lost their job

• This discrepancy undermines the purpose of tribunals to assist the more disadvantaged members of society

What is meant by Formality since the Frank’s committee?

• The Tribunal Chairperson must be legally qualified and judges are now used in the Employment Tribunal

• This has led to greater formality in hearings which can sometimes be conducted in the same way as a court hearing

• The formality increased with the attendance of lawyers for both parties, creates a more formal atmosphere and may deter people away from using Tribunals

What is meant by Delay?

• Despite the intention to deal with cases quickly, the growing number of tribunal cases means there is a delay in getting hearings

• The use of part-time non-lawyers can add to this delay

• If a case is particularly complex, it can spread over a number of weeks, possibly even months

What is an Alternative Dispute Resolution (ADR), and what are the 4 most common methods?

A term used to define a range of techniques adopted to resolve disputes outside of the court process

• Mediation

• Conciliation

• Arbitration

• Negotiation

What did Lord Woolf say about ADRs?

• He highlighted the importance of resolving disputes without recourse to the courts

• He felt ADRs enabled parties to have greater control of the proceedings, avoid high court costs and excessive delays

• Judges are now able to grant a “stay” in proceedings to enable parties to try use Alternative Dispute Resolutions to resolve the conflict instead of using the courts

What is meant by Negotiation?

• Parties involved in a dispute discuss the problem between themselves, with or without a solicitor present, to find a solution

• Could involve solicitors that result in a settlement before the court date

• Biggest method of ADR

• Not legally binding

What are 3 advantages of Negotiation?

• Completely private

• Quick, Resolution, maintaining relationship

• Relatively Informal method of resoluion

What are 4 disadvantages of Negotiation?

• Involving solicitors may be costly

• Offers are often exchanged and not agreed until court→ wasting time and money

• People see it as half-way house and think they are not receiving as much as if they had gone to court instead

• Decisions are not legally binding and therefore not enforceable

What is meant by Mediation?

• Voluntary and Non-binding

• A mediator is an impartial go-between who does not make a decision for the parties but will try to find areas upon which they agree

• Mediation is used in Family Disputes and may be appropriate in divorce cases (Family Law Act 1996)

What was introduced in 2011, in terms of Mediation?

• Introduction of MIAMs (Mediation Information Meetings) and this is a compulsory initial meeting for all divorcing couples

• Decide whether to do a resolution through mediation or go through the courts

• It costs around £140

What are 5 advantages of Mediation?

• Cheaper

• Independence

• Quicker

• Doesn’t apply to victims of domestic abuse

• Confidentiality

What is meant by Cheaper?

• Good alternative to costly court procedure

• Average cost is £535 (as well as £140 initial assessment)

• Government’s alternative to save money as courts are too expensive

What is meant by Independence

• Mediator is independent and impartial

• The mediator is agreed upon by both parties

What is meant by Quicker?

• Harmonious way of dealing with disputes

• Less delay to get a mediation hearing

What is meant by Doesn’t apply to victims of domestic abuse?

• New scheme will not apply to those who have been victims of domestic abuse

• This protects victims and prevents acrimonious meetings between parties

What is meant by Confidentiality?

• All discussions are confidential and held in private, usually on neutral ground

What are 6 disadvantages of Mediation

• Not compulsory (Voluntary)

• Not Binding

• Lengthy procedure

• Legal Advice

• Fear of partners in divorce cases

• Parties will have to start again in court if no decision is reached in the mediation

What is meant by Not compulsory (Voluntary)?

It is not compulsory to commit to the process after the £140 initial assessment

What is meant by Not Binding?

Decisions are not binding, and are therefore not enforced by law

What is meant by Lengthy procedure?

• Successful mediation takes 3-5 days to resolve whereas court can be dealt with in one day

• Can be long drawn out

What is meant by Legal Advice?

• Many people take legal advice alongside mediation so they end up saving very little

• There also may be a lack of legal expertise, as Mediators do not need to be family lawyers, so there may be difficulty if a legal point arises

What is meant by Fear of partners in divorce cases?

• Some people are worried about being in the same room as their ex-partner

• This often causes undue stress and anxiety

What is meant by Parties will have to start again in court if no decision is reached in the mediation?

• If no agreement is reached via Mediation, the parties have to start again because neither partner is allowed to use the content of the sessions as evidence in legal proceedings

• Therefore making both parties having to restart when going through the courts

What is meant by Arbitration?

• To obtain a fair resolution of disputes by an impartial tribunal without unnecessary delay or expense

• The parties should be free to agree how their disputes are resolved

• Voluntary submission by the parties, of their dispute to the judgement of some person other than a judge- Agreement will usually be in writing

• Arbitration can occur before or during a dispute by the parties involved

• Results in an award which is binding on parties

• Most commonly used in commercial disputes

Under which statute is Arbitration under and how many arbitrators will be used?

Arbitration Act 1996

Parties can choose between 1-3 arbitrators( if they cannot agree then the Act states that 1 should be used)

Is Arbitration able to be challenged?

• It can be challenged on the grounds of serious irregularity in the proceedings on a point of law

What are 8 advantages of Arbitration?

• Cheaper than the courts

• Private

• Quick

• Parties choose their arbitrators

• Award is normally final and can be enforced through the courts

• Flexible with time→ hearings can be arranged when suitable for both parties

• Informal

• If there is a question of quality, it can be decided by an expert in the particular field

What are 4 disadvantages of Arbitration?

• Unexpected legal point may arise which is not suitable for a non-lawyer arbitrator

• Delay for commercial and international arbitration is just as big as court delays

• If a professional Arbitrator is used, fees can be expensive (Especially if parties opt for formal witness hearing giving evidence and involving lawyers)

• Rights or appeals are limited

What is meant by Conciliation?

• A conciliation discusses the dispute with the parties and encourages them to find a solution upon which they both agree

• They take a more active role in suggesting ways to come to a settlement

• Prevention rather than cure approach

• Most disputes involve industrial/employment disputes before an employment tribunal

• This method can be used to prevent industrial strikes

What are 7 advantages of Conciliation?

• Normally a legal expert in the disputed field

• Private

• Parties receive the right to go to court if not happy

• Flexible with time

• Suitable if parties are not willing to come to agreements

• Cheaper than taking a case to court

• Informal

What are 5 disadvantages of Conciliation?

• Not legally binding

• No decision is guaranteed in the end

• Could be considered too informal so parties may not take it seriously

• No appeals

• No legal aid available

What are 5 advantages of Alternative Dispute Resolutions?

• Quicker and Cheaper than going to court

• Less publicity

• Legal Representation is not needed

• Less formal and less complicated

• Helps keep both parties satisfied

What are 4 disadvantages of Alternative Dispute Resolutions?

• Lack of Legal Expertise

• Lack of certainty as cases are decided case-by-case basis instead of precedent

• Decisions are not normally binding, therefore not enforced

• You might need to go to court after due to a lack of an agreement/decision