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Arbitration in the Workplace

By: Chris Hogan MSc - Updated: 22 Jul 2017 | comments*Discuss
 
Arbitration Mediation Workplace Employer

Arbitration is a way of settling disputes without having to go to court or, in the case of a workplace dispute, an employment tribunal. The idea is that a trained negotiator who has no connection with either side of the dispute brings the two sides together to see if a solution can be found that both sides can live with.

The negotiator, or arbitrator, acts like a judge but provides a faster and cheaper service than going to court, and the decision in arbitration is a legally binding one. The arbitrator is impartial and almost certainly qualified in the field. Both sides must agree to the process and to abide to the decision of the arbitrator. It is likely that the two sides in an arbitration process will have legal advisors with them.

The History of Arbitration In The Workplace

Records show that arbitration was used by ancient Egyptian high priests, and in the UK, there are references to the use of workplace arbitration as early as the 15th Century. Nowadays, arbitration has been used in disputes between football clubs and the sport's ruling bodies, and is being heavily promoted as a way to resolve divorce settlements peacefully rather than relying on solicitors and the courts.

The Free ACAS scheme

The Advisory, Conciliation and Arbitration Service (ACAS), which handles many employment disputes, is a government-funded body set up in 1974 to improve industrial relations by resolving problems through discussion as an alternative to the courts. They offer a free scheme on cases involving unfair dismissal and Flexible Working Disputes.

How does Mediation and Conciliation Differ from Arbitration?

Workplace mediation can be used very early in a dispute and consists of an impartial person speaking to both parties individually, and sometimes together, to see if a solution acceptable to both sides can be found. Both parties must agree to mediation and the mediator will often advise and counsel, and the decision isn't necessarily legally binding between employer and employee.

Conciliation is very much the same but is used when the dispute has become a legal matter. The conciliator should encourage the employer and employee to come up with their own solution, whereas a mediator is allowed to make suggestions.

Resolving Workplace Issues

Human resource departments of an employer can use mediation and conciliation, and a mediator may often be someone from the human resources department, or a senior manager respected by both parties. Mediation can be used internally, after a breakdown in relations between two peers in the workplace, perhaps, or between a manager and staff member. In conciliation, it is better to have an independent person to act.

Arbitration is a weightier affair and is usually used as an alternative to court or an Employment Tribunal, which would otherwise be the next step in the dispute between employee and employer. Assuming the company involved has a disciplinary process then, when that has followed its course and the problem is still unresolved, either party can suggest arbitration. If the dispute is over a larger scale dispute, such as a wage claim or a change in working conditions, ACAS can be approached to preside over the claims and is often brought in by trade unions.

Where to Find Help With Arbitration

ACAS provides advice and services for mediation, conciliation and arbitration and, although much of their work is advisory, they can provide people to intermediate. There are also professional arbitrators who can be hired to assist in a workplace dispute who can be found through the Chartered Institute of Arbitrators. Both of these organisations can be found online or in telephone directories.

There are many benefits to arbitration, mediation and conciliation as workplace alternatives to the legal system. One disadvantage, however, is that the decisions are not as strong in law as legal judgements. This makes it harder to enforce judgements and to stop action designed to thwart the judgement, such as moving assets overseas.

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Little Les - Your Question:
The NHS trust I work for has divided our service into two separate areas, in view of the population we serve. Staff in our department were literally seperated into two separate teams under two separate managers with no say in which team they were being allocated to. One of these teams has been kept employed by the trust while the other team is now out to tender with the rest of the hospital. Does this count as unfair dismissal or redundancy if they are left without jobs?

Our Response:
You would have to speak to ACAS regarding this. Much depends upon how long ago this took place and what the terms of your contract were at the time. As it is an unusual situation, it is really down ACAS to advise.
WorkingRights - 24-Jul-17 @ 12:45 PM
The NHS trust I work for has divided our service into two separate areas, in view of the population we serve. Staff in our department were literally seperated into two separate teams under two separate managers with no say in which team they were being allocated to. One of these teams has been kept employed by the trust while the other team is now out to tender with the rest of the hospital. Does this count as unfair dismissal or redundancy if they are left without jobs?
Little Les - 22-Jul-17 @ 5:58 AM
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