Barry Clarke, the President of the Employment Tribunals of England and Wales, has issued Presidential Guidance announcing the extension of a new type of ADR called a “dispute resolution appointment”. B P Collins’ employment team advises on what this will mean for the parties involved in employment tribunal litigation in the future.
Dispute resolution appointments have been piloted in the Midlands West region since July 2020. They are now available to the parties to an Employment Tribunal claim nationwide as a fourth possible settlement route in addition to Acas conciliation, judicial assessment and judicial mediation.
The Guidance compares dispute resolution appointments against judicial mediation and judicial assessment. Dispute resolution appointments are unique within the Employment Tribunal system as they will be non-consensual. This means the parties must engage in the process should an employment judge order them to do so.
Conversely, judicial assessment and judicial mediation are optional. They can only be used to facilitate settlement if both parties agree to engage in them.
The Guidance explains that dispute resolution appointments are to be confidential and “evaluative”. This means an employment judge will provide the parties with an informed evaluation of the merits of the case. In that sense, they will be most similar to judicial assessments where an employment judge evaluates the parties’ prospects of success and gives them a view on possible outcomes in terms of remedy.
Dispute resolution appointments will generally be listed for four to six weeks after the exchange of witness statements. This will affect the timing of proceedings as, by this stage, the parties will have carried out most of the work required.
Greg Clark, Associate in our employment team, comments:
“The broader impact of this will be that witness statements will be ordered for exchange much further in advance of hearings. There will be less room for the parties to push back the exchange deadline and employment judges are unlikely to be impressed should exchange be delayed.”
The introduction of dispute resolution appointments, as an additional form of ADR, shows the Employment Tribunal’s willingness to encourage the parties to settle. Nevertheless, whether the parties will view them as an effective settlement avenue remains to be seen.