Employment Tribunals and Alternative Dispute Resolution (ADR) (OCR A-Level Law): Revision Notes

Employment Tribunals and Alternative Dispute Resolution (ADR)

Introduction

Employment tribunals and Alternative Dispute Resolution (ADR) represent important mechanisms for resolving disputes outside the traditional court system. These methods have become increasingly significant in the English legal system, particularly following the Covid-19 pandemic, which highlighted the need for alternatives to standard court proceedings.

Employment tribunals specifically handle disputes between employees (or potential employees) and employers. ADR, on the other hand, generally addresses disputes between consumers and traders, though it can apply to various types of conflicts. Understanding these mechanisms is essential for A-Level Law students, as they offer more flexible, often less formal alternatives to litigation.

Employment tribunals

Overview and purpose

Employment tribunals are specialist employment 'courts' that operate outside the civil courts system. They were established as part of a comprehensive reform of social and welfare legislation to deal with specific areas of employment rights. These tribunals provide a forum for citizens who believe they have been treated unlawfully by employers, potential employers, or trade unions.

The key advantage of employment tribunals is their specialisation. Rather than using general civil courts, which handle all types of disputes, employment tribunals focus exclusively on workplace-related matters. This allows for more informed decision-making by panel members who understand employment law and workplace dynamics.

Jurisdiction

Employment tribunals have authority to hear various types of employment-related claims. Their jurisdiction includes:

• Unfair dismissal: Cases where an employee believes they were terminated from their job without proper cause or procedure
• Discrimination: Claims involving discrimination based on protected characteristics such as age, gender, race, disability, or religion
• Unfair deductions from pay: Disputes where employers have allegedly withheld wages or made unauthorised deductions from an employee's salary

Procedure

The employment tribunal process follows a structured pathway designed to be more accessible than standard court proceedings. Here's how the system works:

Initial claim submission: When informal discussions between an individual and their employer fail to resolve a dispute, claimants can submit a claim using an ET1 form. This form is submitted via the gov.uk website to the Tribunal Office. The ET1 form allows claimants to set out the details of their complaint and explain why they believe they have been treated unfairly.

Employer response: Once the employer receives the ET1 form, they have 28 days to complete a response form known as an ET3. This document allows the employer to present their version of events and dispute the claim if they believe it lacks merit.

Case progression: If the Tribunal Office accepts the claim, the employer is formally contacted. At this stage, two outcomes are possible:

• If the employer fails to respond within the 28-day period, judgment is automatically made in favour of the claimant
• If the employer disputes the claim, the case proceeds to 'case management' and a hearing is scheduled to resolve the dispute

The hearing: Employment tribunal hearings are conducted by a panel of three members:

1. An employment judge (who chairs the panel)
2. A representative from an employer's organisation
3. A representative from an employee's organisation

This balanced composition ensures that both employer and employee perspectives are represented in the decision-making process. The inclusion of lay members (the employer and employee representatives) alongside the legally qualified judge brings practical workplace experience to the tribunal's deliberations.

Judgment: Following the hearing, the panel issues a judgment. This decision is legally binding and can award remedies such as compensation, reinstatement, or re-engagement.

Alternative Dispute Resolution (ADR)

Overview and legal framework

ADR encompasses various methods of resolving disputes without resorting to litigation. The importance of ADR was reinforced in 2015 when the United Kingdom implemented regulations to comply with a European Directive on ADR. This Directive, combined with the pressures placed on the court system during the Covid-19 pandemic, has made ADR a priority in the English legal system.

The European Directive established several fundamental principles:

Duty to use ADR: Wherever possible, parties have a duty to attempt ADR as a means of resolving disputes before proceeding to court. This reflects a policy preference for resolving conflicts through cooperation rather than adversarial court proceedings.

Binding nature of decisions: While ADR decisions are generally not legally binding, they become binding if both parties explicitly agree to be bound by the resolution. This flexibility allows parties to choose whether they want a final, enforceable outcome or a non-binding recommendation.

Judicial encouragement: Judges exercising case management powers will typically insist that parties attempt ADR before proceeding to trial. This can include staying (pausing) court proceedings to allow ADR to take place.

Types of ADR

There are four main types of ADR, each with different levels of formality and third-party involvement:

Negotiation

Negotiation is the most basic and informal form of ADR. It involves an individual attempting to resolve a dispute directly with the other party, privately and often face to face. No third party is involved, and no court or legal representatives need be present.

Negotiation is particularly suitable for straightforward disputes where the parties have an ongoing relationship they wish to preserve. Common examples include:

• Noise disputes with neighbours
• Returning faulty goods to a shop
• Addressing poor service from a tradesperson

However, negotiation requires both parties to be willing to communicate and compromise. If one party is uncooperative or the power imbalance is too great, negotiation may prove ineffective.

Mediation

Mediation represents a step up in formality from negotiation, though it remains a relatively informal process. In mediation, a neutral third-party mediator facilitates discussions between the disputing parties, attempting to help them reach a resolution.

Crucially, the mediator does not give their own opinion or impose a solution. Instead, they guide the conversation, help parties identify common ground, and encourage constructive dialogue. The mediator may meet with parties together or separately (in what are called 'caucus sessions') to explore possibilities for settlement.

Mediation works well for:

• Businesses negotiating or renegotiating contracts
• Marriage guidance situations to avoid separation or divorce
• Commercial disputes where parties want to maintain business relationships

The strength of mediation lies in party autonomy. Because the parties themselves craft the solution with the mediator's assistance, they are more likely to comply with the agreement. Additionally, mediation can preserve relationships by avoiding the adversarial nature of court proceedings. However, mediation only succeeds if both parties genuinely wish to find a solution and are willing to cooperate with the process.

Conciliation

Conciliation is essentially a more active form of mediation. Like mediation, it involves a neutral third party helping disputing parties reach a resolution. However, the conciliator takes a more proactive role by actively suggesting compromises and advising parties on potential solutions.

This more interventionist approach can be helpful when parties are struggling to identify middle ground themselves. The conciliator draws on their experience and expertise to propose practical solutions that might work for both sides.

Conciliation is commonly used for:

• Disputed access to goods and services by disabled people
• Cases of alleged discrimination
• Some employment disputes
• Family law matters involving the Family Division of the High Court

One important example is the Advisory, Conciliation and Arbitration Service (ACAS), which provides free, impartial advice on workplace rights and practices. ACAS often acts as a conciliator in employment disputes, helping employers and employees resolve conflicts without proceeding to an employment tribunal.

While conciliation can be more effective than mediation in breaking deadlocks, the conciliator's decision is still not binding unless both parties agree. This means parties may still need to proceed to court if they reject the conciliator's suggestions.

Arbitration

Arbitration is the most formal type of ADR and differs fundamentally from the other methods. In arbitration, the parties refer their dispute to an independent third party called an arbitrator, who hears evidence and arguments from both sides and then makes a decision.

Unlike mediators and conciliators, arbitrators act similarly to judges. They evaluate the evidence, apply relevant legal principles, and issue a binding decision. The key difference from court proceedings is that the parties themselves choose to use arbitration and select (or agree to a process for selecting) the arbitrator.

Important features of arbitration:

Scott v Avery clause: Agreements to arbitrate are often included in contracts through what is known as a Scott v Avery clause. This contractual term requires parties to submit any disputes arising from the contract to arbitration rather than court proceedings.

Binding decisions: Before arbitration begins, both parties must agree that the arbitrator's decision will be legally binding. Once made, the arbitrator's decision can be enforced through the courts, just like a court judgment.

Voluntary nature: Parties cannot be forced into arbitration unless they have previously agreed to it (such as through a contract containing an arbitration clause).

Arbitration offers several advantages over litigation: it can be quicker, more private, and allows parties to choose an arbitrator with specific expertise in the relevant field. However, professional arbitrators can be expensive, and in some cases, arbitration may cost more than court proceedings.

Advantages and disadvantages

Civil courts comparison

To understand when ADR is appropriate, it's helpful to compare it with the civil court system:

Advantages of civil courts:

• Simple and logical system with clear procedures
• Simpler DIY method of bringing cases, with fixed fees and accessible information
• Small Claims Court offers a less formal environment with active judicial involvement
• Legal representation often unnecessary, reducing costs
• Unified set of rules governing both High Court and County Court
• Established appeal routes available
• Jury trials possible in certain tort cases (defamation, malicious prosecution)

Disadvantages of civil courts:

• ADR may not always be enforced or appropriate, even when encouraged
• Cases can be expensive and time-consuming
• The Queen's Bench Division is London-based, creating access issues for some claimants
• Formal procedures can be intimidating for unrepresented parties

Comparison of ADR methods

Each ADR method has distinct advantages and disadvantages compared to litigation:

Negotiation:

Advantages:

• Potentially the quickest and cheapest method
• Most informal approach
• No court involvement or legal fees
• Parties retain complete control

Disadvantages:

• Requires direct confrontation with the other party, which can be uncomfortable
• If unsuccessful, the case may still proceed to court, resulting in wasted time
• Courts may subsequently insist parties return to negotiation before trial
• No third-party assistance to break deadlocks

Mediation:

Advantages:

• Parties maintain control over the process and outcome
• Based on practical common sense rather than strict legal rules
• Can preserve relationships through cooperative problem-solving
• Generally less expensive than court proceedings
• Confidential process

Disadvantages:

• Only works if both parties genuinely cooperate
• Decisions are typically non-binding unless parties specifically agree otherwise
• No guarantee of resolution
• May require face-to-face contact with the other party

Conciliation:

Advantages:

• More structured than mediation
• Impartial conciliator actively suggests solutions and provides advice
• Can help parties identify compromises they might not have considered
• Some cases can be handled by telephone, avoiding direct confrontation

Disadvantages:

• May still require confrontation with the other party
• Conciliator's decision is not binding on the parties
• Parties may ultimately need court proceedings if they don't follow the conciliator's recommendations
• Process may be more time-consuming than simple negotiation

Arbitration:

Advantages:

• Agreement to arbitrate can be made at any time or included in contracts via a Scott v Avery clause
• Decision is binding and enforceable through courts
• Process is voluntary, requiring mutual consent
• Can be quicker and more private than court proceedings
• Parties can select an arbitrator with relevant expertise

Disadvantages:

• Requires confrontation with the other party
• While sometimes free, professional arbitration can be expensive
• Using professional arbitrators may cost more than court proceedings in some cases
• Limited rights of appeal compared to court judgments
• Parties must agree in advance to be bound by the decision

Exam guidance

When answering questions about employment tribunals and ADR, consider the following:

For 8-mark questions: You should be able to explain each type of ADR clearly, including its definition, how it works, and appropriate examples. Focus on accuracy and clarity rather than evaluation.

For 12-mark questions: You'll need to discuss advantages and disadvantages, comparing different methods and evaluating their effectiveness. Consider:

• When each method is most appropriate
• The balance between formality and flexibility
• Cost and time implications
• Whether binding decisions are needed
• The importance of preserving relationships

Remember!