Employment
This page contains information about:
Employment Disputes
Disputes at work
Employment Tribunals
ADR options
Time limits
Cost
Employment Disputes
Employment disputes include claims about:
- unfair dismissal (including constructive dismissal)
- equal pay
- discrimination
- redundancy pay
- terms and conditions
- flexible working
For all of these the employee has a right to go to an Employment Tribunal. There is more information about how Employment Tribunals work later on this page.
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.
If you have been treated unfairly at work, and have the right to take your case to an Employment Tribunal, you could also think about whether some form of ADR might be a helpful choice. There are new procedures for Disputes at work which were introduced in April 2009, and these encourage employers and employees to try to resolve disputes at an early stage.
There are two key advantages to using Conciliation or Mediation in workplace disputes. One is that getting together at an early stage in the dispute may prevent it becoming worse, and help both sides to see each other’s point of view. The second is that an agreement negotiated with help from a conciliator or mediator can include a much wider range of solutions than a tribunal – tribunals can usually only award compensation, and although they can recommend that an employer reinstate an employee, they cannot force the employer to do so. ADR can lead to solutions such as:
- 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
The main disadvantage to using ADR is that if the dispute is between an individual employee and a large company, the employee may feel at a disadvantage. Tribunals, like courts, are there to ensure that the ‘weaker’ party can enforce their rights.
IMPORTANT NOTE: most employment claims have Time limits, usually three months. If you are thinking about ADR, or want to try it out, make sure you don’t miss your deadline for making a tribunal application. Get advice as soon as possible from your trade union, a CAB or Acas.
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Disputes at work 2009
From April 6th 2009, there are new procedures for dealing with disputes at work. The three-stage statutory procedures for discipline and grievance have been simplified, and new procedures for employment disputes will be supported by a statutory Acas code of practice. This gives an outline of ‘fair’ and ‘reasonable’ standards in dealing with workplace disputes. Employment tribunals will be able to take it into account when hearing cases, and to revise awards upwards or downwards between 0% and 25% if employers or employees have not followed it. There is also a longer, non-statutory Acas guide which contains more detailed advice and guidance.
Acas helpline
The new procedures emphasise the importance of trying to resolve disputes at an early stage. In order to support this, Acas has expanded the opening hours of the Acas helpline (08457 47 47 47) – from April 2009 it will be open from 8am to 8pm on Monday to Friday, and from 9am to 1pm on Saturdays.
Acas pre-claim conciliation
Acas offers an early dispute resolution service on the same basis as their existing telephone service. You can read more about this on the Acas conciliation page on this site. Before April 2009, Acas telephone conciliation was offered automatically when a claim was put in to an employment tribunal. Now conciliation is available for any workplace dispute or potential dispute, even before an employment tribunal application has been made. This was piloted in a number of areas, and according to the independent evaluation carried out by the Institute for Employment Studies, settlements were reached in 56% of cases where both employers and employees agreed to conciliate, and the majority of these cases were resolved within two weeks. Access to this new pre-claim conciliation service is available to employees, employers and advisers via the Acas helpline: 08457 474747.
There are more details about the ADR options in workplace disputes below.
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Employment Tribunals
Where employment disputes are not resolved between the parties, 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.
Employment Tribunals are like courts, but they are less formal. They are specifically set up to deal with employment disputes, they are independent, and they are nearly always open to the public. In 2007-08 189,303 applications were accepted by ETs. The most common issues were equal pay, working time directive, unfair dismissal, unauthorised deductions, breach of contract and sex discrimination. To take unfair dismissal as an example, 32% of claims were withdrawn, 37% were conciliated through Acas conciliation, 9% were unsuccessful at a tribunal hearing, and 10% were successful.
For more information, you can have a look at the Employment Tribunals website, contact the Employment Tribunals public enquiry office on 0845 795 9775, or phone Acas on 08457 47 47 47.
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ADR options
Acas Conciliation
The Advisory, Conciliation and Arbitration Service (Acas) offers information, advice and Conciliation to employees and employers involved in a workplace dispute. You can call the Acas helpline at any time, even before an application has been made to a tribunal. For its pre-claim conciliation service, which was expanded in April 2009, ACAS requires that parties must first have tried to resolve the dispute without external help, they must believe that the dispute is likely to end up in tribunal if unresolved, and they must be prepared to discuss the dispute and possible solutions in good faith. 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. This is usually done on the phone. The officer can explain tribunal proceedings and the tribunal's approach but will not advise parties on their legal position.
Acas arbitration
Arbitration has long been used for collective disputes, but Acas has also 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. It is rarely used in individual disputes, but you can find more information on the Acas website.
Mediation
Mediation usually involves a face-to-face meeting between the parties. It can be used to try to deal with a workplace problem such as bullying or arguments between work colleagues, before it has escalated into a grievance or the need for disciplinary procedures.
Often the mediator works with the parties in separate rooms, shuttling between them with offers and responses. Towards the end of the mediation, the mediator brings the parties together to try to negotiate an agreement. Unlike Acas officers, mediators will not see it as their duty to give you information about your employment rights, so make sure you get some independent advice. Mediators also vary in how directive they will be – some will try to remain completely neutral, and allow the parties to suggest any possible solutions. Some will offer an opinion or suggest an outcome.
Mediation is offered by Acas and by a number of commercial workplace mediation providers registered with the Civil Mediation Council. You can request a workplace mediation provider by getting in touch with the National Mediation Helpline.
The Employment Tribunals service also offers ‘judicial mediation’ in employment tribunals. Judicial mediation offers an alternative approach to resolving disputes and involves a trained tribunal judge assisting the parties to reach a resolution. Judicial mediation is available only to parties who have a dispute which involves an element of discrimination and whose case is estimated to take three or more days to resolve at a formal hearing. There is no obligation on either party to take part in mediation. If the mediation is not successful, the chair who has mediated will take no further part in the case, and a different tribunal chair will take responsibility for any future hearing.
The scheme was piloted in Newcastle, Birmingham and London Central during 2006-07. It was introduced throughout England and Wales in January 2009 and will be formally launched in Scotland on 10th June 2009. We are still waiting for the independent research into the pilot to be published.
NOTE: Judge Goolam Meeran, president of the employment tribunals, wrote at the start of the pilot that mediation has ‘greater potential to tackle some of the underlying issues which affect the dynamics of the workplace’, but also pointed out that a judicial determination remains an ‘important safeguard for the rights and duties of both employees and employers’.
EHRC Conciliation Service
From April 2009, the Disability Conciliation Service will also offer free conciliation for employment disputes which involve claims of any kind of discrimination. If you think you have been treated unfairly in the workplace because of your gender, your race, your religion or belief, or your sexual orientation, then this is another option. Referrals to this service are made through the Equality and Human Rights Commission. The EHRC helpline numbers are :
England: 0845 604 6610
Wales: 0845 604 8810
Scotland: 0845 604 5510
The Equalities Commission Northern Ireland: 028 90 890 890
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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, you should consider lodging a claim with the tribunal before initiating any ADR process so as not to risk missing the deadline for applications. Get some independent advice from your trade union, a CAB, a solicitor or Acas as soon as possible so you don’t miss an important deadline.
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Cost
All the advice, information and telephone conciliation provided by Acas is funded by the government, and free to users.
Mediation, whether offered by Acas or by a commercial workplace mediation provider, will cost money. Sometimes the employer will offer to pay for workplace mediation, but talk to the mediator or to your adviser to make sure you don’t feel this puts you at a disadvantage. The LawWorks scheme provides mediation free for clients who can't afford a commercial mediation provider.
Discrimination conciliation in employment disputes through the EHRC funded DCS is free.
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August 2009
