When you are an employer and you are in a dispute with an employee (or former employee), the employee may state that they intend to take you to an employment tribunal to seek compensation. Employment tribunals can be costly (even if you win, as defending yourself takes time and money), emotionally draining, and as the results are published online then they can also be bad from a reputational perspective.
Internal procedures (such as appeals and grievance) can provide an opportunity to resolve matters. But when this doesn’t work, what are some of the other options? We explore three potential routes to resolution in this blog.
Mediation
Mediation is a process of helping parties in a dispute (such as two employees, or an employee and a manager) to understand each other’s perspectives. A mediator is an impartial person who will facilitate this, without taking sides or making a judgement about who is “right” or “wrong”.
The outcome of a successful mediation will be identifying solutions that everybody involved can agree to, and set out how people can work together in the future. Mediation can also help communication between parties.
Mediation is a confidential process which offers a flexible option to work through difficulties. Usually mediation is most suitable when an employee is still employed, and can often be used as an alternative to, or following, a formal grievance process.
Early Conciliation
You may have already heard of ACAS; this is the Advisory, Conciliation and Arbitration Service. If an employee wishes to bring an employment tribunal claim, they will need to contact ACAS to register their intention to do so. One of the things that ACAS seeks to achieve is reducing the number of cases that reach employment tribunal, and as such each time an employee or former employee contacts ACAS to bring a claim, they will be asked if they want to undertake early conciliation.
Early conciliation is a negotiation process within which both sides will try to seek an agreement, supported by an ACAS Conciliator. If successful, the employee/former employee will agree to waive their right to bring a claim, in exchange for something from the employee. Typically this will be an ex-gratia payment, but can also include things such as agreed wording that will be used in response to a reference request.
If an agreement is reached, the ACAS Conciliator will draft an agreement document (called a COT3), which sets out the terms of the agreement. Once signed the agreement is binding, and the case will not proceed to employment tribunal. Unlike employment tribunal awards, this process is confidential, and will resolve matters much sooner.
Settlement Agreement
A settlement agreement is a legally binding agreement that can be formed between an employer and an employee or former employee. They are used either to agree to end the employment relationship, or like a COT3 can also be used after the employment relationship has ended to resolve any employment tribunal claim or potential claim from the employee. Within the agreement, the employee will waive their right to pursue a claim in exchange for a financial sum.
Whilst a settlement agreement is similar to a COT3 in many ways, it is negotiated directly between the employee and employer, or their legal representatives, rather than through ACAS, and can also have greater scope. A settlement doesn’t admit any wrongdoing on either side, and is also confidential.
We have another blog coming up later in September on settlement agreements, which will consider things like how a settlement is reached, and the different financial sums that may be involved, so please check back soon for more detail on this topic.
ViewHR can provide you with support to identify which, if any, of these options may be most appropriate in a particular situation and guide you through the processes and negotiations. We are also able to offer mediation, and can draft and review documents as appropriate for early conciliation and settlement. Please contact Gemma today for an initial discussion surrounding a dispute. Gemma has vast experience is managing employee disputes and will find the best way forward for you and your business.
