Employment Tribunals – what does a “win” actually look like and what is the most effective way of achieving the best outcome?

This article was first published in HR Magazine on 18th July 2022

21 July 2022

I listened with interest to the recent BBC Radio 4 programme hosted by Evan Davis on Employment Tribunals. It was part of the excellent series called “The Bottom Line” and can be heard here in case you would like to tune in for yourself. For all those who are or may be involved in employment disputes, it highlights some important issues and offers some clear takeaway messages.

The initial focus was on what “ends up as an employment dispute” and “who tends to win”. Participating was a lawyer who tended to act for employers, a lawyer who most of the time represented employees and also a specialist HR practitioner.

What rapidly emerged from the debate was a clear consensus that if a case goes all the way to a full trial before the Tribunal you rarely find there is a “winner”. Paraphrasing a little, there is the “loser”, and then there is the ostensible “winner”, at least in legal terms who doesn’t in reality “win” in all respects, and may in fact, to some extent have also “lost”. This very much concurs with my longstanding experience of Tribunal cases – not all decisions provide the emphatic result the parties were after; the stress, time and effort cases involve, not to say their cost, is not to be underestimated and in some cases collateral reputational damage can be an unwanted consequence too.

The discussion then moved on to the alternatives. Chief amongst those were Acas Conciliation and Judicial Mediation. Both these alternatives have huge potential advantages but still, for whatever reason, seem to be underused. In my opinion their potential upsides should be talked about much more than they currently are.

Just looking at the statistics we see from the Acas 2020-2021 Annual Report that 264,000 people accessed the Acas individual dispute resolution service (compared to 170,000 in the previous year), of which only 7% ended up at an Employment Tribunal hearing. That is, by any measure, a pretty good outcome ratio. It will be interesting to see the figures for 2021-2022, which are expected to be published shortly.

Judicial Mediation first came in as a pilot study in 2006 and is now available throughout England and Wales. It is a process that involves bringing the parties together for a mediation at a private preliminary hearing before a trained Employment Judge who remains neutral and tries to assist the parties in resolving their disputes. There is no actual loss to the parties (save for any legal expenses incurred with their lawyers) – for unlike private (commercial) mediation, the judicial mediator comes entirely free of charge (at the point of use). 

Largely but not entirely on account of the pandemic, the current delays in having cases heard before a Tribunal is quite extraordinary. So surely it must make sense to give mediation a chance whenever it can sensibly be brokered. There are always some cases that are never or can never settle for particular reasons, but they are comparatively rare in my experience. 

For me Evan Davis’ debate provided an obvious conclusion. When an employment dispute arises, and for whatever reason it cannot be sorted out in the workplace, the aim must be to explore carefully the possibilities of bringing about resolution via the alternative ways described above. And further within the HR and Employment law worlds arguably we should be seeing much more focus on the skills required and the best tactics to employ in order to bring about such resolution rather than letting so many cases get to Tribunal at such significant cost in terms of time and money – to the claimant, the employer and also the public purse.

FURTHER INFORMATION

If you have any questions regarding the blog above, please contact Richard Fox or a member of our Employment team. 

 

ABOUT THE AUTHORS

Richard Fox is a senior consultant within the Employment team. He has been at Kingsley Napley throughout his career and until October 2019, led the Employment team since its inception more than 25 years ago.

 

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