ADR + Employment tribunals Flashcards
(12 cards)
Role of employment tribunal 8m
Resolve dispute between employee and employer - usually because employee feels unlawful treatment, unfair dismissal/ discrimination
Impartial and independent body - ensure fair decision is made, enforced by chairman with 7 years experience, unbiased, lay members ordinary people who have no connection to case
Provide a remedy - if appropriate, compensate or reinstate employee
Pre trial for employment tribunal 8m
Claim has to be within 3 months of the event
ACAS (advisory conciliation and arbitration service), for early ADR and see if there’s a resolution
Claimant obtain advice on case strength, specialist lawyer or trade union, may take own case
Claimant completes ET1 form, must set out detailed reasons for actions
ET3 form sent as a response to claim, includes counter argument
No fee involved
Employment tribunal process 8m
Preliminary hearing with judge and no panel members
Judge welcomes parties and witnesses
If a party doesn’t have a lawyer, judges explains the process
1 party starts case (depend on case type)
witnesses sworn in
witnesses give evidence, then cross examined by other party
judge asks questions, may request witness be re examined
closing submissions
court adjourns to make decision
written decision delivered and remedy hearing if appropriate (compensate/ reinstate employee/ letter of apology/ letter of recommendation)
Appeal within 42 days to an employment appeal tribunal
Employment tribunal 12m
Adv, cheaper, no fees for ET and no lawyers needed, however disadv for employee as employer is likely to have a good lawyer that the chairmen is less helpful
Adv, expertise on offer, chairmen has at least 7 years experience (helpful insight for parties), however may not benefit parties as they may be busy so can’t offer expertise
Disadv, increasing formality, less help given to employee so may not understand, however it’s still much less formal than court is
Disadv, lack of funding, no legal aid available so may struggle to afford, however don’t need a lawyer and no fees so shouldn’t require funding
Mediation 8m
Neutral person
Parties in separate rooms
Mediator (professional or a family/friend) shuttles between parties to reach a compromise
doesn’t offer an opinion unless asked to
parties can withdraw
often in family disputes over children and financial issues
Charity such as relate may help
formal = mini trial, neutral panel, panel don’t agree= mediator helps
Mediation 12m
Adv, parties on good terms, continues relationship, can trade
Adv, try to avoid hostility, can collaborate in the future, however sometimes still hostile
Adv, cheaper than court, saves money good for individuals, more likely to do it if its cheap
Adv, quick, justice achieved quicker, no chance of more issues occurring
Disadv, inappropriate in some cases, example family abuse, need court even if don’t want to
Disadv, no legal aid, individuals may not be able to afford, however low costs so don’t need to
Disadv, lower compensation, may not equal what deserve, court may be closer to the amount the winning party wants
Disadv, not binding, parties may refuse, issue not resolved
Conciliation 8m
Discusses the issues and suggest grounds for compromise
more pro-active than mediator
same role of shuttling between parties to reach a compromise, both parties must agree
ACAS
offers opinion and solution
often in employment/industrial disputes
can be between companies
usually don’t reach agreement
Conciliation 12m
Adv, parties on good terms, continues relationship, can trade
Adv, try to avoid hostility, can collaborate in the future, however sometimes still hostile
Adv, cheaper than court, saves money good for individuals, more likely to do it if its cheap
Adv, quick, justice achieved quicker, no chance of more issues occurring
Disadv, inappropriate in some cases, example family abuse, need court even if don’t want to
Disadv, no legal aid, individuals may not be able to afford, however low costs so don’t need to
Disadv, lower compensation, may not equal what deserve, court may be closer to the amount the winning party wants
Disadv, not binding, parties may refuse, issue not resolved
Negotiation 8m
Dispute with another person or business
Can be conducted by parties/ representatives or lawyers
Settle dispute easily and without confrontation
face to face, writing, phone or email
an attempt to come to an agreement
agreement can be verbal or formally written
no need for lawyers
Negotiation 12m
Adv, good business reputation, compromise so won’t lose, can continue to operate
Adv, preserved relationship, trade with each other, better profitability
Adv, low costs, no need for lawyers, less to lose
Adv, parties in control, decisions made by them, may not know what decision to make
Disadv, not binding, parties may refuse, issue not resolved
Disadv, chance of hostility, parties may ruin relationship, hard to negotiate
Disadv, may have to go to court, can’t compromise, waste of time and money
Arbitration 8m
Parties let an arbitrator (or a panel) decide for them
normally have experience
agreement in writing
date/time/place decided by parties
formal hearing in private
lawyers = not necessary
decision is called an award = can be enforced in court (binding), can be challenged if irregular or an issue with a serious point of law
Contained in initial contract - an arbitrations clause (Scott v Avery), court will refuse to deal with it
Arbitration 12m
Adv, can choose the arbitrator, can pick someone they feel the can trust, makes the process smoother and less hostile
Adv, parties make all the decisions, can find a time suitable to them (don’t miss work), making it more convenient and possibly cheaper
Adv, private, businesses can avoid bad publicity, can maintain trading and profit
Adv, cheaper, no court costs, more likely to want to sort the issue if it’s cheap
Disadv, complicated cases, may be difficult to understand without a lawyer, may not be able to defend themselves
Disadv, expensive form of ADR, individuals may not be able to afford it, issue not resolved
Disadv, delays in booking an arbitrator, more issues may occur while waiting, if case becomes too complicated can’t do ADR
Disadv, not always suitable, can’t be used in some cases, less flexible then court
