The Department for Business, Innovation and Skills (BIS) has developed a framework for resolving employment disputes that emphasises the early resolution of workplace matters in the workplace and sets out a number of steps to be taken before matters progress to an employment tribunal. Employers may find this useful in reviewing their own disciplinary and grievance procedures.
Read the framework on the BIS website.
Judicial mediation
Judicial mediation is free of charge and may be used as an alternative to a full employment hearing in cases involving discrimination. NHS Employers has developed the following set of questions and answers for employers, relating to judical mediation.
Judicial mediation is a scheme offered by employment tribunals as an alternative to a case going to a formal hearing. It is available where the case:
• involves sex, race, age, disability discrimination
• is scheduled for a hearing of three days or more.
Parties to the proceedings and the employment judge must initially agree that the case is suitable for judicial mediation. If this is agreed then the case will be listed for one day before a trained mediation judge in a private meeting, which will take place at the employment tribunal. The employment judge may suspend the timetable for preparation of the formal hearing (i.e. preparation of bundles and witness statements), which can save on trial costs. The mediation judge will assist the parties in seeking a resolution to the case. He will not offer an opinion on the merits of the case as such. If the mediation fails, the case will go to a formal hearing. The employment judge involved in the mediation may not preside over any subsequent hearing. The file recording the details of a mediation will be held separately to the case file and will not be seen by the trial judge.
Judicial mediation has been available at all employment tribunals since January 2009, following successful pilot schemes held at a number of regional tribunal centres.
The services of the mediation judge are free of charge and may avoid the need altogether for costly and lengthy legal proceedings in the tribunal. An outcome that is satisfactory to both parties may promote (or be less adverse to) the ongoing employment relations between the parties.
Cases must involve sex, race, age or disability discrimination and be scheduled for a hearing of at least three days. In some cases, the positions of what the parties wish to achieve from mediation are so far apart that successful mediation is not possible. The employment judge who assesses whether there is a real prospect of judicial mediation succeeding may order a Schedule of Loss so that the parties can assess whether there is a real prospect of a successful mediation.
Approval for severance payments must be obtained from the relevant bodies (i.e. the SHA, Monitor, HM Treasury) in accordance with the Guidance for employers within the NHS on the process for making severance payments to senior managers and local practices. Please note that Treasury approval is necessary in all cases involving severance payments, not just very senior managers. Judicial mediation may still be used in such cases but Treasury approval is recommended to be sought at the earliest possible stage so that the mediation can be completed and finalised on the day.
The mediation hearing is usually attended by the Claimant and the Respondent and his/her representatives. It is advisable to have an officer or employee in attendance at the hearing with your legal representative in order to give instructions regarding the level and terms of settlement; to agree a reference; issue an apology or to provide a view on the prospects of reinstatement or re-engagement if this is requested by a Claimant.
This can be done by negotiating with the assistance of the Advisory, Conciliation and Arbitration Service (ACAS) and agreeing the terms of a COT 3 , which can be finalised on the day of the mediation. Alternatively, in more complex matters you may require a compromise agreement to be completed and signed by both parties before they leave the tribunal. Please note that the Claimant needs to be legally represented or have the services of a trade union officer authorised to sign a compromise agreement, in order to validly execute the agreement on the day of the mediation.
Unlike mediations outside of the judicial process, they will be limited to the office hours of the regional tribunal offices (usually from 9.00am to 5.00pm).