EMPLOYMENT TRIBUNALS AND ADRS
tribunals exist alongside court system, some matters can ONLY be dealt with in n employment tribunal
deal solely with employment issues
forms of Alternative Dispute Resolution which exist to resolve disputes without going to court/tribunal
EMPLOYMENT TRIBUNALS
deals with issues like claims of unfair dismissal, discrimination in workplace, redundancy
ET sits in separate idling and less formal than court, no wigs/gowns
claim on employment issue MUST be brought within 3 months from event (e.g dismissal)
in most cases ACAS (Advisory, Conciliation and Arbitration Service) must be contacted within this time, to seek resolution. Only if matter cant be resolved, claim arises
claimant normally seeks advice before taking a claim, from specialist lawyer/trade union
claimant can take their own case
no fees involved - claim must set out detailed reasons and filed with tribunal within time limit
tribunal panel consist of: judge specialising in employment law, person representing employers organisation, person representing employees organisation
if preliminary hearing needed, takes place before judge without panel members
either side can represent themselves, or have a lawyer
most hearings open to public, hearings generally short
end of hearing panel may decide on day or give later in writing
collective decision of panel will subsequently be issued in writing: favour of employee- may encourage a settlement (e.g writing favourable reference, comp.); settlement not reached- can award compensation; claim lost- employee won’t have to pay employer’s costs, though responsible for costs of any lawyer they used; either side unsatisfied- can ask (within 14days) tribunal to review decision
either side may appeal within 42 days to Employment Appeal Tribunal only on a point of law
further appeals can be made to CoA (civil division) and UKSC, only on point of law and with permission from Employment Appeal Tribunal
NEGOTIATION
disputes can be negotiated so that they can be settled in the easiest and least-confrontational way possible
e.g: face to face talking, writing, phone/email
attempt to come to an agreement/settlement, which can be verbal or formally set down in writing
can be conducted by parties themselves, their representatives, their lawyers or a combination
if carried out by parties, shouldn’t cost anything
yet involvement of lawyers will inevitably involve cost
even if original negotiations unsuccessful and court proceedings issued, can take place right up to court hearing
MEDIATION
where a neutral person helps parties each compromise
parties usually in separate rooms/locations and mediator acts as facilitator, shuttling between them putting forward points and opinions
parties have control over process, so can stay however long and withdraw whenever
mediator wont give opinion unless asked
successful mediation depends on parties embracing concept and participating
hoped that parties will reach compromise/agreement acceptable to both
often used in family disputes (over children, financial issues)
parties must show attempted this process before starting court proceedings
charity such as Relate will provide mediation service in this case
another charity offering mediation services is Centre for Effective Dispute Resolution, promoting service as an effective form of ADR and provides training for mediators
more formal method of mediation is a ‘mini-trial’: each side presents case to panel, composed of neutral party plus decision-maker executive from each party in dispute; once all submissions made, executions with help of neutral adviser evaluates 2 sides positions and try come to agreement; if executives cant agree, neutral adviser will act as mediator
even if whole after not resolved, mediation can narrow down issues so if case goes to court, wont take long
CONCILIATION
similar to mediation
conciliator plays more active role, discussing issues with parties and suggesting grounds for compromise or settlement
parties still have control over process, can withdraw whenever
as with mediation, both parties must agree final compromise and process may not lead to resolution, especially if parties fixed in their position
ACAS is e.g of a conciliation service:tries to encourage parties in employment dispute to reach settlement before claim issued in ET; also gets involved in industrial disputes, e.g if trade union calls a strike action, ACAS will attempt to conciliate between parties to reach a compromise
ARBITRATION
both parties agree to let dispute be left to judgement of a neutral arbitrator or. panel of arbitrators
arbitrator will normally have experience infield of dispute
agreement usually in writing, and contained in initial contract between parties which will be made before any dispute arises
arbitration clause is called a Scott v Avery clause: such agreements are governed by the Arbitration Act 1996, which provides that court will normally refuse to deal with dispute when Scott v Avery clause exists; initial agreement will either name arbitrator or provide method for choosing one, if no selection procedure, a court may appoint an arbitrator; common to find a Scott v Avery clause in building contracts, package holiday contracts and mobile phone contracts
parties agree procedure for dealing with dispute which can range from ‘paper’ arbitration- where points set out in writing and arbitrator makes decision based on this- to a formal court-like hearing
date, time and place of hearings decided by parties in conjunction with arbitrator, and any formal hearing hear in private
legal representation not always necessary, saves parties expense of lawyers and less confrontational
arbitrators decision called and ‘award’, its final and binding on parties; if necessary, can be enforced in court
award can only be challenged if serious irregularity n proceedings/point of law