In the post-fees era, there is anecdotal evidence of a couple of emergent trends in employment tribunal litigation. Firstly, there is speculation that some hearings are being listed for longer than they would have been in the pre-fees era. Secondly, reductions in the number of panel members due to funding cuts may now be leading to considerable delays, in the order of months rather than weeks, in the listing of long discrimination and whistleblowing cases in certain tribunals. Whether these myths are in fact true and whether they are due to the sharp drop in claims remains to be established. However, while the rumour mill is turning, there will be some clients who will be interested in taking their dispute out of the tribunal in order to save cost, time and achieve a swifter resolution.
After Acas early conciliation has come and gone, the ET1 has been issued and the hearing listed for a time in the distant future, there are essentially four key alternatives, with numerous pros and cons, to keeping a dispute within the employment tribunal system. These can be very briefly summarised as follows:
- Inter partes negotiation. This is all that is needed in many cases. Although there will be some disputes where this has been attempted but has failed, or where the gulf is too wide and/or emotional investment too high for a meaningful negotiation to even begin.
- Judicial mediation. This has proven to be popular with some tribunals reporting a high success rate in achieving settlement on the day of the mediation. If settlement is not achieved on the day, it sometimes comes shortly thereafter. In some cases, the reality of being inside the very tribunal that would try the case focuses the mind and this can be cheaper than other forms of ADR.
- Non-judicial mediations. Other cases will benefit from an externally-appointed mediator chosen by the parties at a venue of their choice and/or from an external and legally-binding assessment of the strengths and weaknesses. The choice of mediator is vast. The parties are free to choose whomever they want to mediate their dispute. A neutral venue can go a long way to creating the right environment for a resolution to be reached. A mediator who is an expert in a particular area, such as discrimination law, can be extremely beneficial. There is also a strong case for choosing this option at the earliest possible stage and before proceedings are begun, to make the greatest saving on time, cost and to maximise the chances of saving the employment relationship or securing a mutually acceptable exit plan before positions become too entrenched.
- Arbitration. This is an interesting choice that preserves some of the formality of the employment tribunal, provides a platform for the evidence to be tested by the arbitrator, leads to a legally-binding decision but avoids the stress and uncertainty of extensive cross-examination of multiple witnesses. This may be a particularly attractive option where the dispute is international, where there are concurrent or consecutive actions in the employment tribunal and civil courts or, perhaps, with litigants in person wishing to have their day in court and distrustful of negotiations.
In conclusion, it will be worth taking a step back from the norm in some cases: is the tribunal truly the right forum for this dispute? There will be some disputes that are, frankly, crying out for a creative and bespoke approach to be taken to their resolution. In such cases, it will be wise to seek to agree with the other side the best-fit form of ADR to suit everyone’s objectives, and if possible, at the earliest opportunity.