Promoting access to injustice? Alternative dispute resolution and employment relations in the UK

In the United Kingdom, workers and employers are increasingly being encouraged to use alternative dispute resolution (ADR) mechanisms rather than Employment Tribunals (ETs) to resolve conflicts. Like adjudication, ADR involves the intervention of an independent third party in the dispute, but its aim is to help them reach a settlement rather than to apply legal rules and sanctions. It is generally praised for its comparative affordability, speediness and informality. As part of ETHOS WP6 on struggles for justice, this report unpacks the implications of the shift from judicial to extra-judicial dispute resolution for workers’ capacity to contest power inequalities and exercise their rights. It focuses on the activities of the Advisory, Conciliation and Arbitration Service (Acas), a large state-sponsored agency which wields unparalleled influence on the overall landscape of employment-related ADR in Great Britain.

The report moves from theoretical reflections on the relationship between ADR and justice to the description of Acas policy, the mapping of social partners’ perceptions of ADR and the experience of workers who resort to it. Perceptions are assessed through four semi-structured interviews, two of them with union representatives and the other two with employer representatives. The description of worker experiences draws on a large-scale quantitative study conducted with Acas users in 2015 and six in-depth ethnographies with precarious workers who interacted with Acas in the course of an employment dispute. The ethnographies took place between 2011 and 2014 as part of an ERC-funded project examining how the law is mobilised by workers who cannot easily afford to pay for legal advice.

Acas’ main intervention in employment ADR takes place through a conciliation service which intervenes rapidly in ET claims, entails no direct financial cost for parties and seems to be positively evaluated by most of its users as well as (other) employers. However, unions have been more critical of its capacity to deliver fair outcomes, and both legal theory and available data suggest important pitfalls in terms of procedural and substantive justice. When it does not conclude in a settlement, conciliation may lengthen the dispute resolution process in a way that imposes disproportionate burdens on workers. Whatever its outcomes, it also offers employers an opportunity to shape workers’ expectations through the authoritative voice of conciliators, whose impartial position may be confused with that of a judge despite the fact that they have no mandate to interpret legal rights and standards. The ambiguity is compounded by Acas’ multiple roles, including a helpline on employment rights which many employees contact prior to conciliation. High rates of satisfaction with Acas services may thus conceal that conciliation can result in workers accepting unfair settlements in which their legal rights are compromised. Also of concern is the prevalence of confidentiality agreements which can make further claims by other employees difficult to pursue, and which keep employer abuses of rights out of the public domain. The tension between ADR and justice is signalled in Acas’ own Codes of Practice of mediation, which list the types of cases where it may not be suitable. While these cases seem to overlap with those likely to give rise to a Tribunal claim, the conciliation system puts the onus on claimants to decide whether to litigate or not. In this context, it seemingly encourages them to go through a process which leaves them in a weaker position than judicial proceedings. Since worker vulnerability partly reflects the overall inequality of bargaining power created by a long-standing decline in union representation, collective ADR (designed to prevent strikes rather than court cases) may be more likely to deliver fair outcomes than individualised interventions.