Last year UNISON won the most significant judicial intervention in the history of British employment law, after a four-year legal battle. On 26 July 2017, The Supreme Court declared employment tribunal and employment appeal tribunal fees were unlawful, and abolished them with immediate effect. Unison general secretary, Dave Prentis, said the ruling was “a major victory for employees everywhere”. But the outcome took many by surprise. Not least the government, who have been forced to repay more than £27m in fees which have been collected from employees since July 2013, when they were first introduced.
Tribunals role in employment disputes
Employment tribunals play a key role in workers’ rights. They are a forum where workers and employers can seek justice for cases of unfair dismissal, discrimination and other workplace related grievances. In 2015 ACAS (Advisory, Conciliation and Arbitration Service) published research that indicated that more than two-thirds of claimants were deterred from taking a case to tribunal, due to the fees associated. With the tribunal cost barrier removed, it stands to reason that the number of claims will increase.
There are also concerns that early conciliation service (which is free and intended to settle the dispute without needing court) provided by ACAS, will see a reduction in successful settlements. Previously claimants were less likely to pursue tribunal if it failed, and employers were less co-operative on the basis of this being true. But attitudes may need to be adjusted. It may therefore be prudent for employers to be more receptive to the idea of, and co-operative when taking part in, early conciliation – or any other kind of dispute resolution proceedings, as potential claimants are inevitably more likely to go to court if they are unsuccessful.
Impact on the tribunal service
An increase in the number of tribunal claims is anticipated, but the volume is unknown. When the fees regime was first introduced in 2013, there was a sharp reduction in the number of claims. With less cases to administer, the support services within the employment tribunal were reduced. This new increase in claims following the abolition of the fees, will no doubt put strain on those reduced services, possibly resulting in delays in the management of claims.
Although the case for fees has been settled for now, there could be more changes to the landscape of tribunals. Justices did not rule out the possibility of the government introducing a new fee structure that would be lawful. Ideas for smaller fees, or fees on a scale which takes into account the potential value of the claim, have been touted. However, this is unlikely to be priority for the government at this time.
What next for employers?
With this landmark ruling, the balance of power seems to have shifted towards employees and trade unions for the first time in many years. But despite this case being a watershed for the government, employers, employees and the tribunal system, there are some obvious complications for the claimants and respondents. Not least the potential delay in processing caused by increased caseloads.
Therefore, employers will look for alternative methods of dispute resolution. Many will start (if they haven’t already) reviewing their protocols to examine how they can effectively resolve workplace disputes and avoid them ever reaching tribunal. The reason for this is threefold.
- Despite the abolition of the fees, tribunal is a lengthy process. One that can be a drain on time, resources and possibly emotions.
- The outcome will be final but it will result in only one winner.
- It is very common for the professional relationship between the claimant and the disputant to be irreparable once the grievance is settled.
Of course there are some circumstances where tribunal is absolutely the right choice. But there are alternatives available; alternatives that could still reach a settlement and even an amicable outcome.
Mediation for employment dispute resolution
As employers seek solutions, mediation steps into the light as a possible method of not only resolving issues, but also repairing professional relationships, which is often critical for those who wish to continue working in the same industry. Proven to de-escalate conflict and reduce unnecessary costs, mediation can be used with or as an alternative to tribunals.
Mediation is the facilitation of discussion about complex situations, difficult subjects and sometimes, emotive cases. At its simplest, it is an uncomfortable discussion between two people. In more complex cases it can involve a number of parties, with vested interests in different outcomes. Whatever the context, the adaptable and flexible nature of mediation continues to develop, providing more methods of intervention and tools which can lead to a mutually agreeable outcome.
Employers are becoming more aware of mediation and how it can work effectively for them. Some organisations have already reviewed their employment policies and contracts to incorporate mediation. Using mediation for employment dispute resolution means that a potential case of disciplinary or grievance, could be resolved quickly. Something which is hugely appealing when the comparative timeframes of tribunal could seemingly be so much longer. Many large employers are looking to set up ‘mediation schemes’ which use both their own and external mediators. Moves like this indicate that they are committed to making mediation a progressive part of their culture, which will perhaps even the scales and encourage more fair and just outcomes.