Access vs Process in Employment Discrimination: Why ADR Suits the US but not the UK

Abstract

This article compares the legal systems for resolving employment discrimination claims in the US and the UK, with particular attention to court or tribunal procedures and the use of alternative dispute resolution (ADR) techniques. The comparison reveals that the US system of bringing claims first to the investigative – but non‐adjudicative – Equal Employment Opportunities Commission (EEOC) and then to the US Federal Courts takes more time and money, but results often in higher compensation, than does the UK system involving conciliation by the Advisory, Conciliation, and Arbitration Service (ACAS) before resort to the Employment Tribunals. From this difference appears to follow a much greater enthusiasm, even desperation, for ADR in employment discrimination in the US than in the UK. This piece suggests that the UK may not need ADR, as the US clearly does, because of different overall approaches and attitudes to remediation of employment discrimination in the two countries.

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