Employment 2025

UK Law and Practice Contributed by: Phil Linnard, Philippa O’Malley, David Rintoul and Clare Fletcher, Slaughter and May

“same interest” in a claim. Although the claim would be brought by one or more of those individuals, the decision will be made in respect of all of the repre - sented individuals. The rules of representation in the Employment Tribu - nal are not as strict as the main court system, where parties must be represented by either a solicitor or barrister with higher rights of audience. Rule 74 of the Employment Tribunal Rules of Procedure pro - vides that a party can be “legally represented” (eg, by a barrister or a solicitor), or can be represented by a “lay representative” such as a trade union repre - sentative or any other non-legally qualified individual. Equally, employees frequently represent themselves in Employment Tribunals, when they would be known as a “litigant in person”. 9.2 Alternative Dispute Resolution There are a number of well-established alternative dis - pute resolution (ADR) models available in the UK as a means of settling employment disputes. The most common ADR mechanisms include the following. • Negotiation – this is flexible and informal. Discus - sions often proceed on a “without prejudice basis” so that, if no agreement is reached, the content of the negotiations will not be admissible in any sub - sequent court or tribunal proceedings. Any agree - ment is usually recorded in a settlement agreement (see 7.4 Termination Agreements ). • ACAS conciliation – the ACAS mandatory early conciliation procedure must be followed by claim - ants who present claims in the majority of Employ - ment Tribunal proceedings (although the only mandatory element is the notification to ACAS; conciliation will only proceed if both parties agree to it). Conciliation involves a conciliator acting as a go-between for the parties, conveying settle - ment proposals and helping both sides explore the strengths and weaknesses of their respective positions. Conciliation remains available up to the day of the case being heard by the Employment Tribunal. A successful conciliation may result in a binding COT3 agreement (see 7.4 Termination Agreements ).

• Mediation – this ADR mechanism involves a neutral third party managing or facilitating the process through which the parties negotiate a settlement. This may take the form of a private mediation or a judicial mediation in the Employment Tribunal. The latter brings the parties together before a trained employment judge who remains neutral and tries to assist the parties in resolving their disputes (which may include remedies that would be unavailable in the Employment Tribunal). The parties may engage in workplace mediation where there is an ongoing working relationship between the employee and the employer. The outcome of mediation would usually be non-binding, unless it also involves a settlement agreement (see 7.4 Termination Agree- ments ). Arbitration is not a very common method of ADR for UK employment disputes. An arbitration agreement entered into before the dispute (for example, via an arbitration clause in the employment contract) would not be effective to prevent an individual pursuing a claim to an Employment Tribunal. Nevertheless, and even where there is no such provision, parties can agree to submit disputes to arbitration after they have arisen. The outcome of arbitration is typically binding on both the parties (but again, could only be so in respect of statutory employment rights if a settlement agreement is used). 9.3 Costs Costs do not “follow the event” in Employment Tri - bunals as they do in civil courts. This means that the parties typically bear their own costs, and tribunals will not usually order that the unsuccessful party cover the costs incurred by the successful party. Tribunals do however have the power to award costs against a party who has acted vexatiously or otherwise unrea - sonably in the conduct of the litigation, or where a claim or defence has no reasonable prospect of suc - cess.

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