Employment tribunals and ADR

What is a tribunal?

An independent, specialist judicial body that hears and rules on disputes in particular areas of law

What areas of law do tribunals cover?

Tax, employment, immigration and asylum, health, education and social care

What is the difference between courts and tribunals?

Tribunals are less formal than courts - no gowns or wigs

What do employment tribunals deal with?

Unfair dismissal, discrimination and redundancy

What is the process to making a claim in an employment tribunal?

• the employee is the claimant and the employer is the respondent

• The C must contact ACAS (Advisory, Conciliation and Arbitration Service) to try early conciliation

• ACAS will get in touch with the employer to see if they can reach an agreement - takes 6 weeks

• Cs have around 3 months to make a claim

What happens when ACAS fails?

• the next step is a tribunal claim

• The C must fill out an ET1 form - details of the C + R, what has gone wrong, what the C wants and a reference from ACAS

• R is sent a copy of the form and has 28 days to fill out an ET3 form and confirm or dispute the facts

Who sits on the heating panel of a tribunal?

An employment judge or a panel of three (an employment judge + 2 experts on employment who are not legally qualified)

How long do most hearings last?

1-3 days but the result comes out at a later date

What are the four possible outcomes once the claim has been heard?

1) If the tribunal favours the employee they will encourage a settlement such as a favourable reference or compensation

2) It a settlement cannot be reached, compensation will be awarded

3) If the claim is lost, the employee does need to pay the employer’s legal fees

4) If either side is unhappy, they can appeal the decision - they must do this within 42 days of the decision

Where is the appeal made?

To the employment appeal tribunal - further appeals can be made to the CoA or SC but only with EAT’s permission

What are the advantages of tribunals?

1) Claims are heard by specialists - employment judge or panel of three

2) Employees do not need to pay for their employer’s legal fees if they lose

3) Tribunals are more cost effective since legal representation is not required - average cost of £150-£500 per party in 2017

4) Speed - hearings are generally quicker than court proceedings - ET Annual Report 2020 on average 28 weeks for a case to resolve

5) Informality

6) Access to justice - unions provide free legal representation for members

What are the disadvantages of tribunals?

1) Lack of public funding - can disadvantage Cs who cannot afford legal advice - Burgess V Sheffield City Council

2) Appeal rights are limited - restricted to points of law rathe rather decisions - Jones v First Tier Tribunal

3) No precedent

4) Formality - more formal than other forms of ADR

5) Time limits/restrictions

6) Lengthy process overall - lots of steps

What is negotiation?

A form of ADR in which two or more parties try to resolve a disagreement directly. It is the most flexible and informal form of ADR and is completely free

90-95% of cases settle before going to trial undoing negotiation

What is mediation?

It is similar to negotiation however there is an unbiased third-party ‘mediator’ to help easy communication between parties. The mediator is unable to force anything and cannot pick a side. R v Hughes 2007

What is conciliation?

Like mediation, there is a neutral third-party who helps the parties reach an agreement. However, a conciliator can provide advice and recommendations.

ETA require early conciliation be attempted

What is arbitration?

An arbitrator is an unbiased person who is able to make binding decisions

What are the advantages of negotiation?

• inexpensive

• Speed

• Informal

• Control - parties have full control over the process

What are the disadvantages of negotiation?

• Not legally binding

• No formal structure

• No resolution

• Power imbalance

What are the advantages of mediation?

• High settlement rate - 70%

• Cost efficient

• Fast

• Neutrality

What are the disadvantages of mediation?

• Willingness

• No resolution

• Lack of precedent

• Not legally binding

What are the advantages of conciliation?

• Speed

• Expertise - the conciliator is normally a legal expert

• Advice

• Success - ACAS - 17% of cases succeed in early conciliation

What are the disadvantages of conciliation?

• Not legally binding

• No appeals

• No resolution guaranteed

• Forced resolution

What are the advantages of arbitration?

• Confidentiality

• Cost effective

• Legally binding

• Experience

What are the disadvantages of arbitration?

• Cost

• Delays

• Formality

• Unsuitable - it can be unsuitable if a complex arena of law is involved