ADR and Employment Disputes

Ever since Lord Woolf's "Access to Justice" report in 1996 and the publishing of the Civil Procedure Rules two year later, the use of Alternative Dispute Resolution (ADR) has been widely encouraged. Lord Woolf's report underlined clear problems with the civil justice system in the UK; principally the huge time delays, the cost and the imbalance between parties. He saw ADR as a positive effort to reduce the amounts of litigation. The recent push in ADR has stemmed primarily from the judiciary. The civil procedure rules allow judges to 'encourage' the use of ADR through sanctions, they may also stop proceedings to give time for parties to attempt some form of ADR.

ADR becomes particularly interesting when considering employment disputes. The client has a choice between submitting his case to two forms of ADR; ACAS (Advisory, Conciliation and Arbitration Scheme) or to an employment Tribunal. Both parties must agree before commencing action. Employers will find obvious advantages in following the ACAS route. Arbitration is completely private whereas tribunals can be reported, businesses will often value privacy as bad press can have financial implications or become generally bad for business. Arbitration may not require lawyers which saves money and because it also takes less time this lessens further expenses.

At a glance ACAS may appear the better option, however when compared with tribunals it seems far more logical for claimants to attempt the later option. An arbitrator is unlikely to be legally qualified, although more and more solicitors are training in ADR it is far more likely an arbitrator will come from a background of human resources. On the other hand, tribunals are a quasi-judicial body and always include at least one legally qualified member. Arbitration follows no strict rules of precedent whereas an employment tribunal will. Moreover where tribunal cases have room to petition to the Employment Appeals Tribunal, Arbitration has no or very little rights to appeal.

It appears strange that in arbitration, where arbitrators are unlikely to have any legal background, there is no predictability with regards to the outcome of a case and no rights to appeal. Surely due to the legal inexperience of an arbitrator rights of appeal should be present! Once more it is unlikely a claimant will be informed of these points when choosing a track as there is no requirement for legal advice even if the decision has a significant influence on a person's legal rights.

Arbitration and other forms of ADR may prove to be a logical alternative to litigation however claimants must consider all options as arbitration may not prove to be the most helpful alternative.