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It is worth remembering when faced with a tribunal claim that there is another way to resolve disputes that is quicker, cheaper and much less frustrating - mediation.
What is mediation?
Basically, it’s a way of resolving disputes without going to court. It involves a mediator (an impartial third party) who helps both sides to reach a mutually acceptable settlement.
The emphasis in mediation is on reaching agreement rather than apportioning blame for what has happened in the past (unlike the court system).
What is a mediator?
A mediator is a neutral third party brought in to help the two sides to the dispute reach a settlement. Their role is to gather information, identify common ground and help generate options for settlement.
How does mediation work?
The two sides to the dispute agree on a neutral venue big enough to accommodate one room where everyone can meet, as well as two separate rooms for each party to use as a 'home base'. If they are using a court-based scheme, these are usually provided free of charge in court premises.
Usually things kick off with an open meeting of everyone in the same room. Each side then has a chance to put forward their version of the dispute and to say how it affects them personally. The mediator makes sure that everyone understands what each person has said, and allows the other side to respond.
Once the mediator is aware of the issues that need to be addressed, they send the parties to their separate rooms. The mediator then talks to each side separately, shuttling backwards and forwards in order to get an idea of what is needed to reach a settlement. At this point, the mediator will not disclose anything that is said confidentially to the other side, unless explicitly agreed.
The overall aim is to find enough common ground between the two sides to reach an agreement. If that is possible (and it usually is) the mediator then draws up a document setting out the terms of agreement which both sides sign.
If the dispute had already come to court, then the two sides must write and inform it of the outcome. If a settlement has been reached, the court will bring the action to a close. If it was not possible to reach a settlement, it will go to trial.
Why mediate?
There are plenty of good reasons:
- The parties are in control and can decide on a settlement rather than having one imposed on them by a court
- Unlike court proceedings, mediation is fast and disputes are usually resolved on the spot within a day
- Because it is so instant, mediation is a lot cheaper than court proceedings. There is only one mediator involved avoiding the need for solicitors and barristers for each side (unless one or both parties want them)
- A mediation agreement is confidential (unless the parties agree otherwise), unlike court proceedings
- Mediation is carried out on a 'without prejudice' basis, which means that the parties can go ahead and litigate if they don’t reach an agreement, without worrying that they have shown their best cards
- Nothing is binding on either side until they have agreed to a settlement with which they are happy
- Mediation can take place anywhere, at any time
What is the National Mediation Helpline?
In conjunction with the Civil Mediation Helpline, the court service set up a telephone helpline (http://www.nationalmediationhelpline.com/ ), which provides civil court users in England and Wales with information and advice on mediation.
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The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) operate to protect employees in the event of a transfer. In Compass Group UK and Ireland v (1) Burke (2) De-Graft-Enorzah (3) Oasis Catering, the Employment Appeal Tribunal (EAT) said that tribunals must stick to basic principles when deciding whether there is a basic economic entity.
What happened?
Ms Burke and Ms De-Graft-Enorzah worked in the kitchen at an infant school (Malorees) until March 2005 when it was closed for refurbishment. The two women, who were employed by Compass (an outside contractor), remained at the school for the summer, while other staff were redeployed to other schools.
When the kitchen reopened in September, another contractor (Oasis) won the contract but did not employ the two women. They claimed unfair dismissal and statutory redundancy.
The tribunal said that, as a result of the kitchen closure and the dispersal of the original team during the 2005 summer term, the 'stable economic entity' that had been in place ceased to exist from March 2005. There was therefore no 'entity' capable of transfer. It concluded that there had not been a transfer of an undertaking (or part of one) from Compass to Oasis.
The EAT disagreed, concluding that the tribunal was wrong to say there was no stable, economic entity after March 2005. It said that it was clear that Compass was engaged in the exercise of an economic activity 'pursuing a specific objective' during the summer term when it supplied meals to the children at Malorees school.
This activity was sufficiently structured and autonomous in that it had a unit manager (Ms De-Graft-Enorzah) an assistant (Ms Burke), and use of the kitchen which was providing meals for about 100 children. The customers remained the same; the premises were the same, as was the equipment. Nor was there any gap in the activities. There was, in other words, a stable economic entity.
It also said that the tribunal put far too much emphasis on the refurbishment of the kitchen. There was no reason why a business should lose its stability 'simply because it replaces certain parts of its plant'. Ms Burke and Ms De Graft Enorzah were continuously assigned to the entity (or to the part that had transferred) and the appeal therefore had to succeed.
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European law requires governments of member states to accurately transpose directives into national law. In Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland, the European Court of Justice (ECJ) said that the UK had correctly transposed a European health and safety directive.
What happened?
Article 5(1) of European directive 89/391/EEC imposed a duty on employers to 'ensure the safety and health of workers in every aspect related to the work'. Article 5(4), however, allowed member states to exclude or limit employers' responsibility if something happened beyond the employers' control which could not have been avoided.
This was transposed into section 2(1) of the Health and Safety at Work etc Act 1974 (HSWA) as follows: 'It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.'
In 1997, the Commission complained that the words 'so far as is reasonably practicable' restricted the scope of the duty imposed on employers by the directive and let them off the hook.
The ECJ agreed with the UK, however, saying that article 5(1) 'simply embodies the general duty of safety to which the employer is subject, without specifying any form of liability'.
Pointing to the legislative history of the directive, the ECJ said it showed that the clause was only inserted because of the problems that member states with common law systems would have had in formulating a duty 'to ensure safety in absolute terms'.
On top of that, the Court said that the Commission had not been able to show that the only way of meeting the directive’s objectives was by setting up a no-fault liability regime for employers.
As for the extent of the duty imposed on employers by the directive, the ECJ said the onus was on the Commission to identify the UK's alleged infringements. As it had not established how section 2(1) of the HSWA limits (contrary to article 5(1) of the directive) the duty of employers to ensure the safety and health of workers, its complaint could not succeed.
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Following the interim decision of the Advocate General, the European Court of Justice has held in Palacios de la Villa v Cortefiel Servicios SA that member states can introduce mandatory retirement ages under the EU Equal Treatment Directive.
Although it accepted that a mandatory retirement age fell within the scope of the directive, it said this was justified because it was introduced with the aim of promoting employment. It was therefore a proportionate means of achieving the legitimate social aim of promoting employment opportunities and reducing unemployment.
We will provide a full case summary of the judgement in a future HReSource.
To download the decision, click here.
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