19 May 2021

Workplace disputes can often lead to uncomfortable situations. Managing them with the right legal methods can be complex and disruptive for businesses. 

Solving disputes through litigation over other alternative dispute resolution holds key advantages for employers.

This guide looks at how both the employer and employee can resolve disputes through litigation proceedings. We’ll also help you discover the benefits of choosing litigation over alternative dispute resolution.

What is employment litigation?

Litigation is a process used for solving disputes through the court system. If you cannot solve a workplace dispute internally, you may dispute the case through employment litigation. The litigation process can be long and complicated. However, the results for such cases can be thoroughly conclusive in the end.

Employees raise workplace issues against their employer through employment litigation. Some of the most common disputes raise range from personal injury, discrimination claims, and employment terminations.

Employment litigation can also include claims of illegal actions like

  • Health and safety violations
  • Insurance claims
  • Employment compensation
  • Whistleblowing protection

These all require legal expertise for deciding settlement. You can normally find methods for dealing with complicated litigation through LLPs, employment tribunals, and high courts.

What kind of disputes can be solved using litigation?

Workplace disputes can take several forms. They can happen between an employer and employee, or within a group of workers who all share the same grievance. Litigation can solve disputes like:

  • Commercial disputes; like contract breaches, debt recovery, property damage.
  • Employment disputes; like claims for unfair dismissal, gross misconduct, harassment, and litigating employment discrimination cases.
  • Personal injury claims; like workplace health and safety, compensation for accidents.

Within the UK, different courts and tribunals used to resolve litigation disputes. Deciding which one suits your situation will depend on the value and nature of the claim.

Litigation process

The primary litigation stages deal with formally actioning the dispute. You must complete a claim form, and include all the individuals involved, times/ dates, and basic details of the dispute. 

The case statement outlines the full details of the dispute and includes facts to support the claim. The timeframes and complexities of the trial can vary depending on the individual’s situations.

Are dispute resolutions the same as litigation?

A judge passing the outcome resolves litigation disputes. Alternative dispute resolutions (like arbitration and mediation) use non-court methods for resolving disputes.

Whether to choose between litigation processes or ADR can often cause great difficulty for claimants. They ultimately decide between them based on the legal outcomes, expenses, and potential damage to business relations.

Advantages of litigation in dispute resolution 

  • Result: when you engage in litigation, you almost certainly get a result. Despite potentially being able to appeal decisions in the future, they always pass a judgement at the end of the hearing.
  • Legal standard: a court judgment sets a legal precedent which means we can use similar cases as an example to resolve your case.
  • Public record: litigation cases become part of public record once they go through the court system. (This differs from ADR, where confidentiality is not confirmed). Because cases are publicly accessible, the chances of damaging claims or inaccuracy are near impossible. 
  • Evidence: legislation governs all court proceedings. This means they can state what constitutes as evidence. They cannot use information provided in ADR as legally standing evidence.

Disadvantages of litigation in dispute resolution

  • Court setting: you must use judicial courts for litigation disputes, for the decision to stand legally. Whereas we can decide arbitration and mediation settlement outside of courts. ADR is arguably more favourable for some claimants, for its informal and civil manner.
  • Methods: Arbitration methods use an impartial person for its hearings; who listen to a dispute and make recommendations. As litigation stands as a legal process, it must include all sides of the judiciary to resolve disputes.
  • Types of cases: Mediation and arbitration deal with civil cases, whereas litigation deals with both civil and criminal cases. 
  • Expenses: Legal costs are a significant difference between ADR and litigation. Litigation procedures are expensive to use, and costs can quickly escalate during cases.

Both employers and HR representatives play a crucial role achieving the desired dispute outcomes. Having to face the possibility of tribunal claims and litigations can be stressful for a business. 

Commercial and civil litigation

Depending on the type of litigation dispute, you should choose your legal representative accordingly. The litigation procedure can be civil litigation or commercial litigation.

  • Civil litigation:is a dispute between two parties, where one side is claiming financial payment from the other. Civil litigation cases are relatively quick and straightforward in their process.
  • Commercial litigation: involves disputes between businesses. Because of their complexities, commercial litigation and dispute resolution for these cases can be thorough and lengthy.

Can I resolve disputes without going to an employment tribunal?

You can manage litigation disputes through your own grievance policies. If an employee has a expressed a concern, and feels like it has not been resolved internally, they can seek further help by:

  1. Contacting ACAS. They can provide several alternative dispute resolution practices, like arbitration, mediation, and conciliation.
  2. Discussing the concern with the employee to settle an agreement.
  3. Seeking private mediation with an impartial third party.
  4. If the claim applies, you could discuss it through judicial mediation.

You should aim to support the employee and their concerns without litigation or employment tribunals. This will save you time and money; and will minimise disruptions to your business.

Seek support from employment consultants for help with workplace disputes. This way, you have access to specialist advice, legal representation, and can aim to nurture your working relationship with the employee.

Get expert advice on litigation with Peninsula 

You can avoid workplace disputes if you have a fair and consistent HR policy within your business. Our HR and employment law specialists can help you draw up policies to manage litigation against employers.

Workplace disputes can involve grievances of discrimination, professional behaviour, employment contracts or breaches to confidentiality. We can provide expertise and resources for you and your staff to assist your employment tribunal litigation. Our team can help you with workplace disputes and guidance on litigation proceedings that fit your disputes.

Peninsula clients get access to 24/7 HR consultation with our employment specialist. And if you’re not yet a client, you can still enjoy free advice from one of our business experts. Simply call us on 0800 028 2420.

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