Related posts:No related photos. Comments are closed. Previous Article Next Article Where do we go from here?On 1 Feb 2002 in Personnel Today The Government has given notice to employers that stemming the tide oflitigation at employment tribunals is their responsibility. But alternativedispute resolution has yet to catch on in the workplace. Lucie Carrington looksat some promising developmentsPressure is on employers, workers and their representatives to findalternatives to the law when it comes to settling workplace disputes. Themassive increase in tribunal cases and levels of compensation over the past fewyears, and the Government’s current determination to bolster in-house disputeresolution procedures through the Employment Bill and other proposedlegislation have all added urgency to the search for other ways out. Ten months ago arbitration and conciliation service Acas launched anarbitration scheme for cases of unfair dismissal. It offers a quick,confidential and less formal process than a tribunal. But the arbitrator’s viewis final and there can be no recourse to an employment tribunal if either partyis unhappy with the outcome. So far the scheme has not been hugely successfulwith only seven cases having come forward. Viable alternative This is not the only form of alternative dispute resolution (ADR) thatemployers and their advisers are considering. Mediation is becoming afashionable skill in the legal profession as more people try to avoid lengthyand costly legal action. It is already growing in popularity as a solution tobusiness disputes. Mark Mansell, a partner in the employment department atAllen & Overy is working on a pilot mediation scheme with QC John Bowers.He is convinced it has great potential as a way of resolving workplace issues. “It came out of the view that employment tribunals weren’t the best wayof resolving disputes, particularly in discrimination or harassment cases wherethere might be some possibility of an employee staying in employment,”Mansell says. “Look at the experience of other countries such as the US, Australiaand New Zealand where mediation is a more important part of the HR armoury forresolving disputes. “Given the larger awards and the hike in claims, it’s only a matter oftime before employers here start to think that tribunals simply aren’t the bestway of resolving disputes. At the very least we must give other ways of doingthings a go,” he says. Degree of training Some ADR services, such as Bristol-based ADR Group, insist that mediatorsshould be legally trained but not all mediation services follow this rule.Certainly there will be cases where mediators need some expert knowledge butAcas, for example, keeps a list of people who are trained in mediation but notnecessarily legally qualified. The Allen & Overy pilot mediation scheme involves both lawyers andnon-lawyers although, once again, they are all trained in mediation. Whateverthe case, the mediator has to be accepted by both parties. The pilot involves two mediators for each case – one a lawyer, probably anemployment lawyer with mediation experience, and the other a trained andexperienced mediator. Both parties come together for an initial meeting and topresent their case. “This could be the first time both have aired theirarguments to each other,” Mansell says. They then retire to different rooms while the mediators shuffle between themwith a view to their coming to some sort of agreement. A major part of themediation is working out the parameters for a settlement. It could be thatsomeone wants financial compensation, or it may be the employee just wants anapology or recognition that a mistake has been made. “Often money is a badway to resolve these sorts of problems,” says Mansell. The process should last about a day. However, it will also involve somepreparation time, though Mansell is at pains to point out that it is not alegal process: employers are not expected to justify every action theirmanagers have taken. It is also a voluntary process, which means that eitherparty can withdraw at any time and opt for an employment tribunal instead. So far the process has been used in only four cases. Mansell wants tocomplete about half a dozen before analysing them, working out any changes andoffering it as a service to employers. Employers can then offer it to staff asan option for settling unresolved grievances. Swamped in-trays Employers are also trying to find their own ways through the tribunal claimsswamping corporate in-trays. Armed services retailer Naafi introduced its ownin-house ADR scheme more than 18 months ago (Employers’ Law, June 2000). Thescheme was set up in partnership with Amicus, formerly the MSF union, to dealspeedily with unfair dismissal claims. If it becomes clear that management has acted fairly and properly then theunion will not support an employee who wants to take the case further. If theunion thinks there is a case to answer then it goes to arbitration or possiblyan employment tribunal. So far it has proved very successful with no cases making it as far astribunal, says HR director Mike Nicholson. He believes it could work fornon-unionised firms too – all they need is some form of employee representationand the will to discuss unfair dismissal claims frankly. Ironically, the scheme is not open to non-unionised staff at Naafi – whoprobably account for two thirds of the workforce – because of the partnershipdeal with Amicus. “From the union’s point of view it is a membershipbenefit and to apply it to all staff would be to undermine their efforts torecruit members, and our deal with them,” Nicholson says. Management responsibility However, the non-unionised majority almost certainly benefits from theeffort Nicholson and his HR colleagues have put into improving the standard ofmanagement in the organisation. All 600 line managers are now trained ingrievance and disciplinary procedures and well versed in Naafi’s anti-bullyingpolicy. “It’s a very significant part of our ADR scheme. We have someexcellent HR policies and processes but their effectiveness is down to howmanagers implement them at the front line,” Nicholson says. It is a point echoed by Yvonne Bennion, a policy specialist with theIndustrial Society makes. Last year she co-authored the society’s own report onADR: Courts or Compromise. “Personnel managers often feel helpless becausethey’ve been let down by line managers who act without thinking or don’t followthe rules,” Bennion says. She suggests that if employers are really serious about resolving workplacedisputes in house, they have to involve managers across the organisation. Unfortunately, the Government’s proposals on dispute resolution in theEmployment Bill are unlikely to help personnel managers at this level. The Billsets out minimum disciplinary and grievance procedures that employers mustoperate (see page 16). Employers who don’t follow the disciplinary proceduresare likely to be heavily penalised while employees who don’t use the grievanceprocedure will never reach a tribunal. It sounds great except that the minimum standards are not as demanding asthe existing Acas codes of practice which were revised only a year ago, andwhich most large firms say they implement. In addition, the Bill seems to be revokingwhat is known as the Polkey principle. This has been around since the late1980s and effectively means that tribunals can find against employers who donot follow their own procedures, even if the outcome would have been the same. “The bill is pulling in both ways,” says Christopher Mordue, anassociate in the employment department at Pinsent Curtis Biddle. “It isincorporating statutory minimum standards into every employment contract while,at the same time, attempting to get rid of the Polkey principle.” Union fears It’s a pretty radical change to the tribunal regime but one that is likelyto leave employers confused, even if as Mordue suspects, tribunals continue toapply the Polkey principle anyway. At the same time the TUC fears that the Government’s plans will preventworkers pursuing their right to seek justice through the legal system. “Weare keen for firms to have good disciplinary and grievance procedures butstopping people going to employment tribunal is philosophically the wrong approach,”says senior employment rights officer Sarah Veale. Yvonne Bennion backs her up. “Of course it’s right to pursuealternatives, but not at the expense of limiting the rights that people have inlaw,” she says. “Who is the government to deny people their day incourt?” A better approach would be to pump more resources into Acas so that it cando the job it is good at – helping employers keep workplace disputes away fromthe tribunal, according to both the Industrial Society and the EngineeringEmployers Federation. Acas has a statutory duty to offer conciliation for every tribunalapplication. Last year (2000/01) the organisation conciliated in more than100,000 individual applications out of 130,000 claims made. Seventy per cent ofthose cases were subsequently either settled or withdrawn. Admittedly the Government has said it wants Acas to increase the work itdoes with smaller firms through workshops and conferences but, given thefigures, it seems hard to believe that ministers have not made Acas thelynchpin in the drive to help firms resolve disputes in-house. To conciliate, arbitrate or mediate?ArbitrationAn independent arbitrator is appointed to decide the outcome ofa dispute. He or she will take evidence but in a less formal setting than atribunal or court or law. The idea is that the arbitrator’s decision is finaland may well be legally binding. Acas is probably best known for the arbitration it provides incollective disputes between employers and unions. But it now also offers anindividual arbitration scheme for unfair dismissal cases. ConciliationA third party is brought in to help the parties in a disputecome to some sort of compromise and find a settlement that is acceptable to allsides. Conciliation is not about offering possible routes out but helpingparties find their own solutions. Conciliators are paid Acas employees andtrained in conciliation techniques but not necessarily legally trained.MediationThis is similar to conciliation but mediators are moreproactive in steering different parties towards a conclusion and will suggestpossible ways to move the process forward. Acas also offers what it callsadvisory mediation to organisations that have problems which have yet to reach theimpasse of a formal dispute.Early neutral evaluationThis started in the US. An objective observer studies theevidence with a view to giving both parties in a dispute an early and frankevaluation of the merits of a case. Sources: Acas, The Industrial Society, ADR GroupHow to make mediation workAs with any alternatives to the law,both parties have to want to resolve the dispute if they are consideringmediation. If either wants to have its day in court then mediation is not theanswer.– Both parties must be prepared to be flexible; they must thinkabout what they are prepared to accept and what they are prepared to concede.– Mediators aim to offer possible solutions, to steer andcajole parties to a conclusion, so both parties also have to be willing to takeadvice. – The process has to be confidential as well as voluntary. – It is not a formal legal process, so turning up with boxfiles full of evidence won’t impress. Mansell also suggests both employers andemployees make a better impression if they present their own introductorystatements. – Mediators cannot force the parties to settle. Employees canstill use the legal system if they feel they have not had justice.