Employment tribunals and ADR

• What is the alternative to going to court?

  There are forms of Alternative Dispute Resolution (ADR) that can be used by parties to resolve a dispute. Negotiation, mediation, conciliation and arbitration. Tribunals are also used alongside the court system.
• Negotiation, benefits, disadvantages


  Two parties negotiate either face to face, through email, phone call or letter. This is informal and usually a free way to resolve a dispute. A lawyer or professional negotiator can conduct negotiations but this would incur a cost. This method also may be difficult for some and is potentially a non-starter. Despite this it's free, easy and not public which is good for companies.
• Mediation, benefits, disadvantages

  Involves a neutral mediator, a person who acts as the 'go between' facilitating the discussion between the two parties who do not need to be in the same room for the process. They don't decide the outcome, they're there to simply help 'smooth' the process. Professional mediation services are available. Both parties must agree to pay for a mediator and this is split between the two, which could be both positive and negative. However the mediator keeps the peace and has no opinion despite another person knowing.
• Conciliation, benefits, disadvantages

  Conciliators are similar to mediators but have a more active role in discussions, encouraging the parties to reach an agreement and suggesting grounds for compromise or settlement. ACAS (The Advisory, Conciliation and Arbitration Service) is a well-known conciliation service, commonly used during industrial disputes such as strikes. The advantage is possibly reaching a faster outcome due to the active role they take however the other party might not want to compromise. Furthermore, if it ends up in court then you're paying twice.
• Arbitration


  A third party decides on a dispute to resolve it, delivered by an impartial, neutral person who considers the arguments of both sides and makes a decision based on current evidence. It's quite formal, governed by The Arbitration Act 1996 which many contracts have within a Scott v Avery clause. This outlines that, should a dispute arise, both parties agree to use arbitration methods to settle their dispute. Before it goes ahead it's agreed that the arbitrators decision is final, meaning there's limited right to appeal bar cases of serious irregularity of conduct.
• Arbitration‘s benefits and disadvantages

  It can be quite costly, despite being cheaper than court, and there is also a limited right to appeal which is highly unfavourable to the losing party. However if you are the winning party then the fact the decision is unlikely to be changed can be seen as a positive. However the good thing is that you’re consulting an expert and you can have expert witnesses.
• What are tribunals?

  A formal method of DR that sits alongside the court system. Employment tribunals are most common and are used to deal with cases of alleged unfair dismissal, workplace discrimination and redundancy, among others. They’re very similar to a court case, just without the wigs and gowns seen in court. Employment issues must be brought 3 months from the event in dispute. ACAS are typically informed of the issue to see if a resolution can be reached through conciliation. The employee sets out the case and files it with the tribunal with no fee payable.
• How does a tribunal hearing work?

  • Heard by panel- judge specialising in employment law, two representing the employee and employer
  • Evidence presented under oath by person themselves, legal rep or trade union rep. Hearings are quite short as info has been presented pre-hearing. Decisions made on the day or sent later in writing.
  • The tribunal can be asked to review the decision by either party if they're unhappy with results.
  • If either feel an issue is on a point of law they can appeal to an Employment Appeals Tribunal and to the CoA or SC if EAT allows it.
• In tribunals what happens if the employee wins/loses?

  If the employee wins, they may be awarded a settlement in the form of compensation or a good reference. If the employee loses, they may be responsible for the employers costs.
• Benefits and disadvantages of Tribunals


  You can appeal and it's treated like a court case, but less intimidating and formal. However if the employee loses they may have to pay for the employers costs.