Employment

2.Main Content

This page contains information about:
Employment Disputes
Employment Tribunals
ADR options
Time limits
Cost
Discrimination

Employment Disputes
Employment disputes include claims of unfair dismissal (including constructive dismissal), equal pay, discrimination, redundancy pay, terms and conditions, and flexible working. For all of these the employee has a right to go to an Employment Tribunal (see below). Other employment disputes include harassment, bullying, and interpersonal disputes within the workplace, though if any of these amount to discrimination they can also be considered by an Employment Tribunal.

You can find detailed information on a wide range of employment problems on the Advicenow website. Advicenow also has downloadable leaflets on your employment rights including raising a grievance, young workers, working parents, unfair dismissal and discrimination at work.

ADR is increasingly being used in employment and workplace disputes. Among the ADR options are:

conciliation using the Advisory, Conciliation and Arbitration Service (Acas)
arbitration using Acas
mediation using Acas or other mediation providers

Employment Tribunals are one of the most common forms of employment dispute resolution, alongside Trade Union intervention. It is worth noting that Employment Tribunals have fewer remedies available than ADR. A tribunal can usually only award compensation, and although it can recommend that an employer reinstate an employee, it cannot force the employer to do so. However Employment Tribunals can make recommendations about practice to employers in discrimination cases. ADR options such as mediation can produce a wider range of options, including:

compensation
an apology
an agreed reference
improvements in the employee's situation at work
reconsideration of a request for flexible working
reinstatement/re-engagement
changes in policy
adopting an equal opportunities policy or improving the way it is implemented
arranging training for staff and management on discrimination or other issues

There are both advantages and disadvantages to using ADR techniques such as mediation in workplace disputes. Trust and confidence between employee and employer are crucial to maintaining the relationship, but are easily damaged. Mediation could work well at an early stage of a dispute, as it aims to help both parties to see the other's point of view, and does not end up with a winner and a loser. On the other hand, once trust is gone, mediation and conciliation may have little chance of success.

In the first instance, employees and employers are expected to use an internal grievance or disciplinary procedure to resolve problems at work. The Employment Act 2002 set out statutory minimum dismissal and disciplinary and grievance procedures, which apply to all employers and employees from October 2004. Details can be found on the BERR website.
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Employment Tribunals
Where employment disputes are not resolved through an internal procedure, Employment Tribunals (ETs) are the main avenue of redress in England, Wales and Scotland. In Northern Ireland unfair dismissals and other employment claims are dealt with by the Central Office of Industrial Tribunals.

In 2005-06 around 115,000 applications went to ETs. Tribunals have come under increased pressure, not so much from the volume of cases as from the length of time needed for hearings. More cases are lasting for more than a day, making each case more costly and time-consuming.

Employment Legislation
The Employment Rights (Dispute Resolution) Act 1998 aimed to help tribunals cope with the increasing volume and complexity of cases, reduce delays, and 'contain demand' on public spending. (In Northern Ireland similar legislation has been enacted.) Among the ADR elements it introduced are:

a new Acas arbitration scheme for unfair dismissal cases
an easier route to settlement through compromise agreements. (Previously only Acas officers and other legally qualified advisers could 'sign off' on a negotiated settlement of a dispute that would have gone to the tribunal. Now any authorised employment adviser, legally qualified or not, can do so, as long as they have the required insurance cover and are certified by their agency to broker such agreements, known as compromise agreements. This has meant complainants can avoid having to pay a solicitor's fee.)
the extension of Acas conciliation to cover disputes about statutory redundancy pay
an emphasis on using an employer's internal appeal system, with penalties to complainants for not doing so

The Employment Act 2002 aims to improve the efficiency of tribunal procedures and to encourage the early resolution of disputes. The Act sets minimum standards for grievance and disciplinary procedures, and it allows tribunals to penalise parties (by reducing or increasing awards of compensation) for not using these procedures. These provisions came into force in 2004.

There is also a risk of costs order with tribunals; this means that new rules introduced in 2001 have allowed a tribunal to award costs against a party if it decides that a party's claim or defence has been 'misconceived'. The maximum amount that an ET can award for a costs order without assessment in the county court is £10,000. Parties who have not been advised are more likely to be at risk, as are those who bring rather than defend claims.
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ADR options
The Advisory, Conciliation and Arbitration Service (Acas) uses Conciliation (usually telephone based) to resolve claims that have been registered with the Employment Tribunal or where there is a right to tribunal. More details can be found on the Acas conciliation page on this site. (In Northern Ireland, the Labour Relations Agency (LRA) performs essentially the same functions as Acas does in England, Wales and Scotland.) If both parties choose to use conciliation, the Acas conciliation officer works with both to try to reach a mutually acceptable settlement. The officer can explain tribunal proceedings and the tribunal's approach but will not advise parties on their legal position.

ACAS conciliation is used for disputes including:

unfair dismissal
equal pay
redundancy payments
terms and conditions
discrimination
flexible working requests
discrimination because of pregnancy, race, sex or a disability

Arbitration has long been used for collective disputes, but recently Acas has established an arbitration scheme for individuals with claims relating to

unfair dismissal
flexible working requests

This scheme is an alternative to the Employment Tribunal and parties cannot go on to tribunal after using arbitration. More details can be found on the Acas arbitration page of this site.

Mediation (in contrast to Acas conciliation, described above) usually involves at least an initial meeting between the parties. Often the mediator then works with the parties in separate rooms, and brings them together to close the session. An important distinction between mediation and conciliation is the extent to which the mediator gives a recommendation or opinion. Mediators do not inform parties of their rights, but the extent to which they issue an opinion or suggest an outcome can vary.

Mediation is sometimes used for non-statutory disputes, such as bullying and disputes between colleagues, and as a stage within some employers' grievance procedures. Mediation also has potential, but is only occasionally used, in some contexts where the tribunal route is an alternative, such as some discrimination and harassment cases. Acas recently piloted the use of mediation for employment disputes involving small businesses, in cases in which a problem - such as bullying or a personality clash - is identified but formal disciplinary or grievance procedures have not yet been invoked.

Mediation in employment disputes is also offered by other mediation providers in the for profit and not-for-profit sectors. A local mediation provider who works with employment disputes can be identified through the National Mediation Helpline. The helpline has a list of providers accredited by the Civil Mediation Council. You can read more about Choosing a mediation provider here.

During 2006-7, the Employment Tribunals service is piloting the use of mediation in Newcastle, Birmingham and London Central. In these regions mediation will be offered to the parties by a tribunal chair who is also an experienced and trained mediator. The tribunals service is particularly interested in exploring the potential benefits of mediation in resolving discrimination cases, where early mediation might preserve the working relationship of the parties. There will be no obligation on either party to agree to mediate, and if mediation is unsuccessful, the chair involved will take no further role in any subsequent hearing. The pilots are being developed by the tribunal staff, the tribunal chairs, and Acas, and will work alongside the Acas conciliation service. There will also be independent research into the pilots. Judge Goolam Meeran, president of the employment tribunals, suggests that mediation has ‘greater potential to tackle some of the underlying issues which affect the dynamics of the workplace’, but points out that a judicial determination remains an ‘important safeguard for the rights and duties of both employees and employers’.

Although the Employment Act 2002 encourages the early resolution of employment disputes within the workplace, neither employment legislation nor the Employment Tribunals' rules of procedure refer to mediation as a method of dispute resolution.
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Time limits
Note that most employment claims have a three-month time limit. If going to a tribunal is a possibility, advisers should consider lodging a claim with the tribunal before initiating any ADR process so as not to risk missing the deadline for applications.

Discrimination claims must be made within three months of the date of the act or incident. The exception is equal pay, which has a six-month time limit. Therefore, complainants must be careful to submit their claim to an Employment Tribunal as soon as possible, even if they are going through mediation or other less formal procedures.
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Cost
Funding of resolution options for employment disputes - other than those provided by Acas - is a problem. In England and Wales, for instance, clients eligible for Legal Aid are able to claim the cost of mediation in employment disputes as a disbursement under the Legal Aid Funding Code, but Legal Representation is not available either. Legally aided advice and assistance is available to eligible clients in Scotland and Northern Ireland. Although many schemes are intended for complainants to use without the need for representation, without specialist legal advice complainants will be at a disadvantage.

Most ADR options (other than Acas ones) will make a charge for their service; usually this is borne by the employer. The LawWorks scheme provides mediation free for clients who are not eligible for Legal Aid.
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Discrimination
A high percentage of employment discrimination cases settle (or are withdrawn) before they reach a tribunal. As with most disputes, negotiated settlement - in these cases usually with the involvement of Acas conciliators - is the primary method of resolution. Among the types of discrimination claims conciliated by Acas are disputes arising under the Disability Discrimination Act 1995 (DDA).
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November 2007