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Changing the Way Employment Tribunals Work
Published in Personnel Today, April 2007
The Gibbons Report on reviewing employment dispute resolution practice represents a compelling call for change in the way that Employment Tribunals conduct their affairs and places the desire to see a much greater role for mediation in resolving workplace disputes.
The strength of the report lies in its plain speaking critique of the existing Employment Tribunal system and its practical and achievable 17 positive recommendations.
The reality is that the existing statutory dispute resolution procedures have lost the confidence of most people and advisors exposed to them and are going to be repealed due to the level of government support.
The potential challenges relating to implementation are how we move from the current prescriptive and complex dispute resolution process to one which whilst being simpler gives Tribunals more discretion to decide cases and thus has less predictability in results.
Litigation by its very nature is uncertain. To ensure success of a new regime it will be crucial to see the stance that Employment Tribunal Chairpersons take in conducting directions and final hearings and to have consistency applied.
Also, it may turn out to be idealistic to fulfill Gibbons hope that claimants be encouraged to present succinct cases as a significant portion of parties (including well paid advisors) cannot resist writing chapter and verse on their cases when a few words will do the job more effectively, though any movement in this area is to be welcomed.
Gibbons is right to place a strong emphasis on mediation as a way to resolve employment disputes. Mediation will be the way forward in this new workplace environment as it works in at least 80% of cases with the right mediator and represents the most effective way of helping business resolve disputes and avoid red tape.
Mediation is informal, generally less expensive than taking the matter to Court and encourages personal responsibility by requiring a solution crafted by the parties rather than one imposed by a 3rd party.
Against this background of change, what steps should human resource professionals take particularly relating to mediation?
Embrace mediation
Overall there is still a lack of understanding about the subject and use of mediation is considered to be a sign of weakness. The nature of employment law which is based on an adversarial legal system where there can often be points scoring between parties can lead to parties being afraid to mediate. I am reminded of John F. Kennedy’s statement on negotiation. “Let us never negotiate out of fear but let us never fear to negotiate.” By embracing mediation human resource professionals will have another way of enabling their firm to avoid potentially costly disputes and to divert management time away from dealing with litigation.
Do not wait for the government legislation.
It is paradox that whilst Employment law has had Alternative Dispute Resolution (ADR) element with the involvement with ACAS offering conciliation since1984, it has been other aspects of civil and commercial litigation which have embraced mediation with the Civil Procedure Rules which can now take into account the parties conduct themselves prior to the issue of legal proceedings. Effectively employment law has been left behind by other parts of the English civil legal system but if human resource professionals start leading the cultural shift this position could be reversed and rapidly overcome.
Start experiencing mediation as a way to resolve disputes.
One of the most dramatic instances is when a person experiences that first mediation and sees that the case which did not look like being settled in fact does get settled. Mediation does work not least within employment law settings. By developing experience one can start making more effective judgements about in what circumstances one should not mediate (One should not always mediate), what type of mediator you should use and how to conduct effective preparation.
Include mediation clauses within your firm’s contracts of employment and where possible with business suppliers.
Such a step will allow reference to a 3rd party to be triggered when notice of dispute is given. In addition, training should be given to staff members to remind them of the existence of these clauses and to encourage management staff to use them.
Contact Human Law Mediation on 0844 800 4239.
Article by Justin Patten: Justin works with human resource professionals and solicitors to help them and their clients use alternatives to court when they are in workplace disputes. He is an accredited mediator, trainer and a solicitor and principal of his firm, Human Law Mediation. If you would like to reproduce this article please contact Justin Patten on 0844 800 4239.
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