“Justice delayed is justice denied” said Prime Minister William Gladstone in 1868, a phrase used ever since to mean that if a remedy notionally available to an injured party is not accessible in a timely fashion, it is effectively the same thing as having no remedy at all. That is where the Employment Tribunal system started in 1964 – so committed to a speedy addressing of claims that the governing Regulations expressly require that the Tribunal should provide at least 14 days’ notice of the hearing of the claim. But here we are in 2024 with the ETs now listing even preliminary hearings for months away and some full hearing dates into 2026, and our new government proposing legal changes seemingly guaranteed to increase claim numbers without any mention of funding the Tribunal system to cope.
In principle you might say that both sides of most employment disputes could simply ride with this in the knowledge that only the very most determined employees will be able to maintain the head of emotional steam necessary to leave their issues unresolved for so long, and that in the end some more sensible option would surely suggest itself. In principle, yes, but in practice, waiting for the Tribunal to determine who was right about something which seemed 18 months ago but probably no longer does, really, is trying enough even without all the damage which would be caused to workplace relationships and the business in the meantime – reciprocal grievances, stress, absences and a wholly unproductive treading on eggshells in the meantime, throwing off space for satellite complaints at every stage.
Perhaps unwittingly (perhaps not – it is hard to know), successive governments’ approach to employment law and the funding of the ET system has therefore created the ideal environment for mediation to flourish. An employer must effectively present its unhappy employee with the starkest of choices – either he can work with you now to find a resolution, or he can crack on with the assorted claims he may say he has and await his date with destiny a year or more hence, haemorrhaging cash, nervous energy and internal credibility at every turn.
So while employment lawyers may suck their teeth over the disconnect between the theory and practice of Employment Tribunal claims (theory – you have all sorts of rights; practice – see you there in a year or so), fans of workplace mediation should embrace the opportunity and extra leverage which this situation creates. Though it may not always feel like it, the Tribunal system may be on your side after all.
