I recently wrote a blog which dealt with the difficulties caused by over complication and how best to address them. With this in mind I recall that in the last year or so I have read a number of newspaper articles in which either dire warnings are issued about very significant delays in the UK employment tribunal system or large-scale multi-party actions are being pursued on behalf of employees in respect of such matters as allegedly significant breaches of the Equal Pay legislation.
The claimants and their lawyers who bring claims in respect of equal pay disputes may be encouraged by the availability of no win no fee agreements, the lack of court fees and the availability of input from the statutorily created body, the Arbitration and Conciliatory Advisory Service (ACAS). These options are meant to make it relatively for claimants to pursue matters such as equal pay grievances. However, even in circumstances where there are cost incentives, many claimants may find that there are three different sets complexities for them to address: –
- The relevant law, comprises a combination of a statutory framework and case law promulgated by the Employment Appeal Tribunal and the courts. This case law is intended to provide guidance on what individual statutory provisions mean. However, not infrequently, judicial decisions conflict, hence there being a lack of clarity. This in turn means that often the eventual outcome of individual cases is uncertain; much will depend on how witnesses “perform” when giving oral evidence and the view taken by an individual tribunal panel. Effectively this means that at the beginning of a case, lawyers cannot necessarily give the advice and assurances that their clients and the whole process can very quickly become stressful.
- Coupled with this, a factual framework has to be established. A potential litigant will have to cope with the additional complexities that may be engendered by an employer, particularly a large employer who is either reluctant to cooperate or whose day-to-day management may be beset by complex or bureaucratic processes. This can result in significant delays before important information and documentation is produced and in practice, even if the tribunal process is properly implemented, an obstructive party can drag things out. Even where they are not responsible for court and legal fees and are assisted by skilled lawyers, parties to employment disputes nonetheless still find that they have to spend a disproportionate amount of time dealing with their cases, time that could be better spent by them possibly looking for alternative work or running their businesses and generating profitability.
- The tribunal process – because in general, proceedings have to be issued very promptly, in practice many cases are filed before they are fully prepared. The tribunal expects cases to be progressed and given the constraints identified above this can be very difficult with litigants finding themselves in impossible situations. In recent years UK courts and tribunals at all levels have been badly affected by financial cuts which impact on staffing levels. Some would say that the situation has reached a critical point. It was recently reported that cases are taking as long as seven months to resolve and the fear amongst some employment practitioners is that the overwhelmed employment tribunal system may simply collapse. This would have very serious implications not just for the relatively small number of high-value and high-profile cases but also for the considerable numbers of more modestly valued cases that are no less important to the people involved in them.
It is fair to say that it is not all bad. In some instances, although it cannot impose settlements, ACAS can provide useful input and within the tribunal system there is increasing emphasis on mediation. However, in reality, by the time that the tribunal proceedings have been issued, there is likely to have been some delay and there is a distinct possibility that the parties to a particular dispute will become entrenched.
Some parties rather cynically see these potentially very useful options as constituent parts of some sort of box ticking exercise. They argue that they have got “this far” and they might just as well hold out for a full hearing even though there may be considerable uncertainty. Others who feel unable to withstand pressure may find themselves pressed into giving in and accepting modest compensation in circumstances where they perhaps should be entitled to considerably more.
In offering its mediation, facilitated meeting and critical thinking services, ASMADR is committed to helping parties to employment disputes avoid the whole layers of complexity that are outlined above in the first place. Although in many instances legal advice will still be required, costs and time expenditure will be considerably reduced. Above all, in the context of safe confidential processes where ultimately the parties determine the outcome, mutually acceptable settlements can be reached in a fraction of the time that would otherwise be taken. Effectively, a win-win that does indeed avoid layer upon layer of complexities.
Principal Director of ASMADR, civil/commercial, workplace, employment, family and educational mediator and trainer with a judicial/legal background. He has knowledge and expertise in dispute resolution in a wide range of areas and disciplines and mediates online.