The number of claims presented to employment tribunals is provided in the Tribunals Service (Employment) annual reports, available from Tribunals Service website. The Department has no information on the number of employment disputes that are privately settled before a tribunal claim is made.
The terms in question are not defined in statute. They describe various forms of third-party intervention with the aim of resolving workplace disputes, but the nature of the processes to which each refers can differ according to whether they are being used in the context of collective or individual employment disputes.
Collective employment disputes
S210 of the Trade Union and Labour Relations (Consolidation) Act 1992 states that:
(1) Where a trade dispute exists or is apprehended Acas may, at the request of one or more parties to the dispute or otherwise, offer the parties to the dispute its assistance with a view to bringing about a settlement.
(2) The assistance may be by way of conciliation or by other means, and may include the appointment of a person other than an officer or servant of Acas to offer assistance to the parties to the dispute with a view to bringing about a settlement.
Conciliation is a flexible process. It can be carried out in different ways according to the context of the dispute and the needs of the parties; although it always involves discussing the issues with both sides with a view to finding and recording a mutually acceptable solution. The distinguishing features of conciliation in collective employment disputes are that participation is voluntary for the parties; the conciliator’s role is purely facilitative (i.e. he/she cannot formally recommend a solution or give any form of determination on the issues); and that a settlement reached in conciliation is not of itself binding in law (although on some substantive issues the outcome may be a change in employees’ terms and conditions which may be incorporated into contracts of employment).
In practice, conciliation is always the first step in third-party collective dispute resolution. Only if a settlement cannot be achieved by this means will parties be encouraged to consider arbitration or mediation. Formal Terms of Reference must be agreed and drawn up before a dispute can be put to arbitration or mediation, and these are generally brokered with the assistance of a conciliator.
S212 of the Trade Union and Labour Relations (Consolidation) Act 1992 states that:
(1) Where a trade dispute exists or is apprehended Acas may, at the request of one or more of the parties to the dispute and with the consent of all the parties to the dispute, refer all or any of the matters to which the dispute relates for settlement to the arbitration of
(a) one or more persons appointed by Acas for that purpose (not being officers or employees of Acas), or
(b) the Central Arbitration Committee.
The key distinguishing feature of arbitration in collective disputes is that the role of the arbitrator (in Scotland, the title is “arbiter”) is to give a formal determination on the issues put before him or her. However, participation remains voluntary for the parties; and an arbitration decision is not of itself binding in law (although as with agreements reached in conciliation, the outcome can result in a change in employees’ terms and conditions which may be incorporated into contracts of employment).
Neither in the 1992 Act nor any other employment legislation is there explicit mention of mediation. However, in the collective employment relations context this term refers to a variant of arbitration under which the third party makes formal recommendations rather than giving a determination. Parties entering into mediation are free to choose to accept, ignore, or use the recommendations to inform further negotiation. In other respects, the two are essentially indistinguishable.
Individual employment disputes
S211 of the Trade Union and Labour Relations (Consolidation) Act 1992 states that:
(1) ACAS shall designate some of its officers to perform the functions of conciliation officers under any enactment (whenever passed) relating to matters which are or could be the subject of proceedings before an industrial tribunal.
The role of conciliation officers in individual rights claims is set out in S18 of the Industrial Tribunals Act 1996:
(2) Where an application has been presented to an industrial tribunal, and a copy of it has been sent to a conciliation officer, it is the duty of the conciliation officer—
(a) if he is requested to do so by the person by whom and the person against whom the proceedings are brought, or
(b) if, in the absence of any such request, the conciliation officer considers that he could act under this subsection with a reasonable prospect of success,
to endeavour to promote a settlement of the proceedings without their being determined by an industrial tribunal.
S18(3) of the 1996 Act extends the conciliator’s role to resolving certain individual disputes in which no claim has as yet been presented to an employment tribunal:
(3) Where at any time—
(a) a person claims that action has been taken in respect of which proceedings could be brought by him before an industrial tribunal, but
(b) before any application relating to that action has been presented by him a request is made to a conciliation officer (whether by that person or by the person against whom the proceedings could be instituted) to make his services available to them,
the conciliation officer shall act in accordance with subsection (2) as if an application had been presented to an industrial tribunal.
Conciliation in individual rights disputes shares almost all the features of conciliation in collective disputes. The process is flexible and can be carried out in various ways according to the context and the needs of the parties, but will always involve discussing the issues with both sides with a view to finding and recording a mutually acceptable solution. Participation is voluntary for the parties, and the conciliator’s role is purely facilitative (i.e. he/she cannot formally recommend a solution or give any form of determination on the issues). The critical difference, however, is that a settlement reached in the course of conciliation under S18 is legally binding in that it disposes of the claim(s) or potential claim(s) to the employment tribunal to which the terms of the settlement agreement refer.
The use of arbitration in individual disputes is confined to the Acas Arbitration Scheme, which was introduced as a result of provisions created by the Employment Rights (Dispute Resolution) Act 1998 to provide a voluntary alternative to the employment tribunal for resolution of unfair dismissal disputes. The Scheme was introduced on 21 May 2001, initially only in England and Wales, and was extended to cover Scotland on 6 April 2004. Under the ACAS (Flexible Working) Arbitration Scheme (England and Wales) Order 2003, and analogous Scottish legislation, the Scheme was widened on 61 April 2003 to allow for referrals to arbitration in respect of claims or prospective claims under the Flexible Working Regulations 2003 which came into force on the same date.
The process of arbitration in individual disputes has much in common with that in collective disputes. Participation is voluntary for the parties. Independent arbitrators /arbiters are appointed by and paid through ACAS (but are not employees of that organisation) and give a formal determination on the issues put before them. However, in contrast to the situation in collective disputes, an arbitration decision under the statutory Scheme is binding in law, and effectively has the same force as a decision of an employment tribunal.
There is no direct parallel in individual dispute resolution for the directive form of mediation carried out in collective disputes. The term “mediation” is used in relation to the resolution of individual workplace disputes; but to describe quite different processes. Nor is the term used consistently by all commentators or practitioners. For instance, some take it to encompass all non-directive forms of third-party dispute resolution, while there are others who only use it in respect of interventions which apply certain techniques or practices. Neither these nor any of the other ways in which the term is presently used affords an entirely satisfactory definition, and so instead BERR has used the word “mediation” to describe any non-directive third-party individual dispute resolution other than that conducted by ACAS under SI 8 of the 1996 Act, which continues to be defined as conciliation. The difference between mediation and conciliation in individual rights claims therefore lies in the statutory context rather than the techniques or the identity of the provider.