Judicial Mediation in the Employment Tribunal - Saving Time and Money?

UPDATE:

As at 12 July 2013, from 29 July 2013, there will be a fee of £600 payable by the Respondent where there is an application for judicial mediation. Note that applications for judicial review have been submitted which means that Tribunal fees may not be payable. There are also new Employment Tribunal procedures coming into effect which will be the subject of another posting.

With Tribunal litigation, the main fears of the parties are that they are going to lose, the Respondent fears a large payout and they both fear the legal fees that they may be liable to pay. Judicial mediation is supposed to help overcome at least the last of those fears.

The status of judicial mediation has been uncertain, but is apparently now available in most Employment Tribunals in England and Wales. I have always been somewhat sceptical about whether or not mediation in Tribunal cases actually works, but after a recent course given by an Employment Judge who is a mediator, I am starting to see its potential benefits.

The Law Society's Practice Note for solicitors gives a good, simple outline of the procedure and criteria for allowing a case to be heard.

Some of the main criteria to be satisfied before a case will be allowed to go to Judicial Mediation are:

• A Tribunal claim must have already been started
• Both parties must agree to the mediation
• The case would normally have been listed for 3+ days - this is because the mediation is supposed to save Tribunal resources
• There is normally an element of discrimination
• An Employment Judge and then a Regional Judge have to give authority for the case to be mediated

How are costs saved using Judicial Mediation?

• If a case that would normally last 3 or more days can be settled in a 1 day mediation hearing, parties will not only save legal fees but Respondents will have less time away from their business
• There are no mediator fees - at the moment anyway
• Preparation time should be less, e.g. not as many documents as for an adversarial Hearing
• It gives an opportunity for earlier settlement. As the Judicial Mediation Hearing will be only 1 or 2 days, it will almost certainly take place quicker that a full Hearing listed for example for 3+ days.

Why might Judicial Mediation be better than other forms of mediation?

• The mediator is an Employment Judge not a generalist mediator with no experience of employment law.  
• The Employment Judge will be able to explain, with authority, why a Claimant's expectations are too high or, equally, where a Respondent's position is unrealistic as he will know the law and how awards are calculated
• The very fact that a Claimant or Respondent, or their representative has to put their position to a Judge is more likely to make them put forward realistic proposals

What are the advantages of Judicial Mediation?

• If a case is listed for a 20 day Hearing, there is very little to lose in time and money by opting for a 1 or 2 day Mediation Hearing
• At a long Tribunal Hearing, it is likely (and as a solicitor I would of course say it is advisable), for at least one of the parties to be legally represented. It's arguable that parties could represent themselves at the mediation hearing, perhaps having taken some legal advice prior to the mediation of the strengths and weaknesses of their case and if it doesn't settle, they can then proceed to the full Hearing.
• Non-judicial mediation can be expensive. Judicial Mediation is free, whereas a mediator will quite naturally expect to be paid and the mediation will be conducted at a Tribunal's offices instead of premises that would have to be paid for separately. Unrepresented parties can in theory take advantage of judicial mediation with minimal expense - arguably what the Employment Tribunal system was supposed to achieve when it was first set up.
• Cases are settled by agreement and therefore appeals are going to be extremely limited - if at all.

What are the disadvantages of Judicial Mediation?

• It is only available after a Tribunal Claim has been submitted - if a Claim hasn't been submitted other forms of mediation may be appropriate.
• If the parties are represented and the judicial mediation does not settle the case, significant extra legal fees can be incurred in having prepared for the mediation hearing which will not be recovered.
• To fit in a judicial mediation hearing into the Tribunal schedule may mean that the full Hearing is delayed
• One or both of the parties may not be serious about mediation but look on it as an opportunity to see if they can find out where the other party feels its strengths and weaknesses are.
• The Judge does not see the documents before the judicial mediation begins. This is the case in a normal Hearing, but by their nature mediation hearings are short - will the Judge have the time to consider the documents properly ?
• If a case is complex and for example would normally be listed for over 5 days with a large number of relevant documents and witnesses, can a 1 or 2 day mediation do proper justice to such a case?

Summary

In summary, I consider there is scope for using judicial mediation in some cases, but certainly not all of them. If mediation is genuinely being considered by both parties, it is difficult for me to see why the parties should pay for a mediator when they can have the services of an Employment Judge trained in mediation and the use of the Tribunal's premises for free !

For a Ministry Of Justice report assessing Judicial Mediation, click here.

CONTACT ME

If you want to find out more about the services that I offer, call 01462 418629, or visit my website www.hertsemploymentlaw.co.uk.

Disclaimer
This blog post is intended for information only. It is not intended to amount to legal advice or be relied on in legal proceedings and readers are advised to take specialist legal advice at all times.

Compensation for Unfair Dismissal Claims

As of 29 July 2013, there will be a cap on unfair dismissal awards of no more than one year's pay, for my latest post on this point, click here 


Many people get confused over what they are entitled to in Employment Tribunal proceedings. I have had cases where Claimants have either thought their claim was worth a lot more than it actually was or a lot less and even the occasional solicitor has not known how awards are calculated !


Not knowing what a claim is worth can lead Claimants to accepting offers that are too low or rejecting offers that they should have accepted . If employers and employees both know what a claim is likely to be worth then negotiations are much simpler and more likely to result in settlement.
A Tribunal will expect the Claimant to draft a Schedule Of Loss which sets out the value of their claim. This can be quite daunting.


If we take a straightforward unfair dismissal claim as an example, the main awards will be the Basic Award and the Compensatory Award.


The Basic Award is calculated using a similar method to statutory redundancy pay, i.e. 1 week's gross pay per complete year of service (capped at £450 for a week's pay as at February 2013), and 1.5 weeks pay (cap of £675 as at February 2013) for each complete year of service at the age of 41 or over up to a maximum of 20 years.


As the name suggests, the Compensatory Award is to compensate Claimants for loss of pay and benefits following from the unfair dismissal. The award is calculated according to pay after deductions for tax and National Insurance, and the value of benefits such as life insurance, pension contributions, company car are factored in as well.


The Compensatory Award is subject to a Claimant's duty to "mitigate" their losses, except for what would have been their notice period if they have been summarily dismissed. 


"Mitigation of loss" means that the Claimant is expected to look for work to offset their losses. 


"Summary dismissal" means dismissal without notice.


If a Claimant is successful, the Tribunal will award losses to the date of the Hearing plus "future losses". "Future losses" are calculated according to the period of time a Tribunal considers that, from the date of the Hearing, it would take the Claimant to find work that paid as well as the job from which they were dismissed.


The Tribunal will base "future losses" on evidence of the job market and the Claimant's attempts to "mitigate" their losses.


There is usually a statutory cap for the Compensatory Award in unfair dismissal claims, currently £68400, but this cap doesn't apply in some cases, e.g. whistleblowing and if the dismissal was for a discriminatory reason.


Example 1


If someone has been dismissed with notice or been paid notice and finds another job within what would have been their notice period and the new job pays the same or more than the job they were dismissed from, the Basic Award is pretty much all they can get because they have successfully "mitigated" their losses.


Example 2


If an employee finds another job after 6 months of being summarily dismissed, the Tribunal Award would be for the Basic Award and the Compensatory Award would be for 6 months' compensation.


Example 3


Let's say that the Claimant finds another job after 3 months of being summarily dismissed but the new job overall pays £500 per month less after deductions than the old job. In this case, the Claimant will receive the Basic Award, the Compensatory Award will be based on 3 months full compensation and  then for the period after the 3 months at the rate of £500 per month.


The guiding principle for Tribunals when calculating awards is that the award has to be "just and equitable" based on the different circumstances for each case. Therefore, in some cases Tribunals may reduce the award (sometimes to zero) if it considers the Claimant has contributed to their dismissal or if the dismissal is only unfair due to a technical breach in the employer failing.


This is only intended to be a brief guide as each case turns on its own facts and the calculation of Tribunal compensation can be quite complicated.



CONTACT ME

If you want to find out more about the services that I offer, call 01462 418629, or visit my website www.hertsemploymentlaw.co.uk.

Disclaimer
This blog post is intended for information only. It is not intended to amount to legal advice or be relied on in legal proceedings and readers are advised to take specialist legal advice at all times.

Contracts of Employment - good reasons for having them

Ok, this is not the most riveting of subjects - but could anything be more important in the employment relationship than a contract of employment?


At it's most basic, the relationship between an employer is that the employer pays an employee and expects the employee to work for that pay. Equally, an employee expects an employer to pay them for the work that they do.


There are lots of good reasons for contracts. First of all, if there's a contract both the employer and the employee know what's expected from each other. The employer knows what they're supposed to pay and the benefits they're giving and employees know what they're supposed to get and what their duties are.


I have seen many good relationships between an employer and an employee break up because no contract was provided - this is often the case with commission and bonus payments.


Another good reason is that contracts, or specifically a "statement of particulars of employment" (which must comply with the Employment Rights Act 1996) has to be provided by law within 2 months of an employee starting work. If an employee is going to be working abroad for a period of 1 month before the 2 month period is up then the statement must be provided before the employee goes abroad.


So what needs to be in the statement? What you'd expect really - things such as pay, notice period, place of work, how the employee will be paid, holiday and sickness entitlements, date employment started etc... 


Another good reason for an employer to give an employee a contract/statement is Employment Tribunal proceedings. If an employee brings a claim in the Tribunal and an employer has not given the employee a statement that complies with the Employment Rights Act, the Tribunal can award between 2 and 4 weeks' pay (currently capped at £400 for a week's pay). Also, it is not a good start in Tribunal proceedings for the employer if they haven't given the employee a contract!


Contracts should not be just left to gather dust in the filing cabinet. If there is a change to the contract, e.g. the employee has been promoted, has received a pay rise or more holidays, these should be appended to the contract. In some cases, an entirely new contract should be issued. It is not so unusual, even in large companies, for an employee to have worked their way up to a senior management role without the contract having ever been changed.


I generally advise that if at all possible the contract of employment should be agreed and signed before an employee starts work. That way, both the employer and employee are certain of what to expect from each other.


CONTACT ME

If you want to find out more about the services that I offer, call 01462 418629, or visit my website www.hertsemploymentlaw.co.uk.

Disclaimer
This blog post is intended for information only. It is not intended to amount to legal advice or be relied on in legal proceedings and readers are advised to take specialist legal advice at all times.

Time limits for Employment Tribunal claims

Normally, claims in the Employment Tribunal have to be made within 3 months of the incident that is being complained of. If the claim is received by the Tribunal even a few minutes late, it is unlikely to be allowed.


Let's take an unfair dismissal claim as an example. The Tribunal claim will have to be received by the Tribunal within 3 months of the "effective date of termination" of employment or EDT.


The word "within" is important. If the employee receives notification of their dismissal on 30 June, the 3 months expires on 29 September, NOT 30 September.


It is also important to note that, in this example, the Tribunal must have actually received the Claim Form by 29 September. In one particular case, a claim was not allowed because although the claim had been submitted online a few seconds before midnight on the last day, it was not received by the Tribunal until a few seconds after the last day. This was the case even though the Tribunal would not have been open until 8 or 9 hours later.


Sometimes, late claims are allowed if there are extenuating circumstances but as there are normally 3 months to bring a claim anyway, why wait until the last minute ?


If you think you are late, or you are unsure, you should take advice just in case you are wrong and, even if you are late, it may still be possible to bring a claim, so take advice. 


There are some claims which may have a longer time limit to bring a claim, for example 6 months for equal pay claims, but advice should always be sought.

UPDATE:

This post was written in September 2011. In the summer of 2013 there will be significant changes to Employment Tribunal procedures which will be the subject of further posts.


CONTACT ME

If you want to find out more about the services that I offer, call 01462 418629, or visit my website www.hertsemploymentlaw.co.uk.

Disclaimer
This blog post is intended for information only. It is not intended to amount to legal advice or be relied on in legal proceedings and readers are advised to take specialist legal advice at all times.