There are a number of ways to sort out problems at work without going to court or an Industrial Tribunal. These include mediation, conciliation and arbitration.
Due to the threat of COVID-19, the Labour Relations Agency has suspended their arbitration, independent appeals and mediations services until further notice.
Mediation is a process that can help come up with a solution that both sides can accept. An impartial expert known as a 'mediator' talks to both sides separately and may talk to both together if needed. It's usually quicker, almost always less expensive and stressful than taking legal action and often lasts less than a day.
The mediator doesn't just tell you what you should do, but advises on issues, asking questions that help people look at their own behaviour. Mediation is best used early in a dispute and is sometimes used as part of a grievance procedure. Both sides, however, must agree to mediation.
Some companies have their own trained mediators and organisations like the Labour Relations Agency (LRA) offer professional mediation services. These services are mainly used to:
- help sort out disagreements between workers, like personality clashes
- resolve problems between you and your employer
- hear appeals against disciplinary action, often in smaller companies
If you go ahead with mediation it's best to be prepared by writing down the problem, the history and possible outcomes that you would find acceptable. Agreements reached through mediation aren't legally binding unless this is agreed in advance.
If you are trying to resolve a particular legal dispute at work, conciliation could help you and your employer settle the problem without making a claim to an Employment Tribunal.
It is similar to mediation but is normally used when there is a particular legal dispute rather than more general problems.
If you decide to use conciliation in your dispute then an impartial expert (known as a conciliator) will normally talk to both sides separately, as well as together if needed and encourage the two sides to come to an agreement between themselves.
The conciliator is impartial and independent (so they are not on anyone's side, and have nothing to gain), and your discussions are confidential. They will try to help you make your thoughts clear, and look at ideas you may have for sorting out the problem.
A conciliator will normally be there to encourage the two sides to come to an agreement between themselves, but a mediator will often suggest their own solution. A trained conciliator will:
- talk through the issues with each side
- explain the legal issues involved
- look at opportunities for settling the case
- help you and your employer agree a legally binding agreement
From 27 January 2020, if you wish to lodge a complaint with the Industrial or Fair Employment Tribunal, you must first notify the Agency and discuss the option of early conciliation. You won't be able to proceed to tribunal without at least considering this option. Both you and your employer have to agree to early conciliation before it can happen.
The decision of an Industrial Tribunal is not affected by your decision to try conciliation, so if you decide not to go through the conciliation process, or if you try and it doesn't work, this does not make any difference.
Your discussions are confidential and the conciliator is impartial and independent, so they are not on anyone's side and have nothing to gain. They will help to bring clarity to your thoughts and will look at ideas that you may have for sorting out the problem. The benefits of early conciliation are that:
- you’ll get a better understanding of the issues
- you might sort out the problem without a tribunal hearing
- you could reach a solution on your own terms
- a settlement can include things that won't be covered in a tribunal judgement, like getting a good reference
Settlements reached through LRA early conciliation are legally binding. You'll sign an agreement called a COT 3, and once you've agreed it, even verbally, there's no going back on it. If you or your employer break the agreement, they could sue you, or you could sue them.
Another form of legally binding settlement is a 'compromise agreement'. These agreements are used where the LRA is not involved. There are strict requirements on a compromise agreement - putting it down in writing and signing it isn't enough.
For this to be effective it must be in writing, relate to your claim and you must have taken specialist advice from someone who has appropriate insurance, usually a lawyer. With either form of legally binding agreement you'll no longer be able to pursue your Industrial Tribunal claim.
It is always up to you whether you accept a settlement. Your employer may sometimes put a lot of pressure on you to accept, for example, they may say that you'll get nothing if you don't accept an offer there and then. But you should remember that you always have a choice.
Settling is usually easier than going to a tribunal, but the amount you get may be less and your employer might attach conditions like a confidentiality agreement. If you're not sure whether to accept an offer or not, consider getting specialist advice.
Arbitration can be used to resolve individual problems, or collective disputes at work (for example trade unions considering strike action) without going to an Industrial Tribunal or Fair Employment Tribunal.
Arbitration uses an impartial outsider known as an 'arbitrator', who decides between two points of view. The arbitrator acts like a judge and makes a firm decision on a case.
The two sides of the dispute will normally agree in advance whether the arbitrator's decision will be legally binding. This means they have to go along with the decision.
Alternatively they will agree that it won't be so they can still decide to go to a court or tribunal.
Arbitration is often used in collective disputes. For example, if a trade union is considering strike action because they can't agree with an employer, then they may agree to get an independent arbitrator, usually from the LRA, to look at the situation and make a reasoned decision.
If you and your employer agree to go to an arbitrator, then it may be a quick way of resolving a problem without the stress and expense of an Industrial Tribunal or Fair Employment Tribunal. Both sides, however, have to agree to go to arbitration which is faster and less formal than a tribunal.
The LRA and some commercial organisations offer the services of specialist arbitrators.
The LRA arbitration scheme
The LRA runs a free arbitration scheme that can decide nearly all of the matters that can be heard by an Industrial Tribunal or the Fair Employment Tribunal. This includes claims of unfair or constructive dismissal, payments owed, redundancy payments, unlawful discrimination, flexible working and less favourable treatment of fixed term employees or agency workers. (This list is not exhaustive).
Both sides must agree to arbitration. You'll have to sign an agreement, having taken advice from the LRA or an independent adviser like a lawyer. Once you've signed, your claim can't go to an Industrial Tribunal or Fair Employment Tribunal.
You can pull out of the process after you've signed the agreement, but you can't then go to a tribunal. Your employer can't pull out unless you agree. You and your employer can still reach an agreement before the arbitration hearing.
- The Chartered Institute of Arbitrators website
- The Labour Relations Agency arbitration scheme explained