Employment Tribunal.

Employment tribunals deal with claims that may be brought against employers by employees relating to their employment or its termination. You will learn here that information on employment tribunals, tribunal procedures and hearings, defending claims, appeals procedures, tribunal costs, compensation and awards. Employment Tribunals are tribunal non-departmental public bodies in England and Wales and Scotland which have statutory jurisdiction to hear many kinds of disputes between employers and employees. The most common disputes are concerned with unfair dismissal, redundancy payments and employment discrimination. The Tribunals are part of the UK tribunals system, administered by the Tribunals Service and regulated and supervised by the Administrative Justice and Tribunals Council.

Employment Tribunals were created as Industrial Tribunals by the Industrial Training Act 1964. Industrial Tribunals were judicial bodies consisting of a lawyer, who was the chairman, an individual nominated by an employer association, and another by the Trades Union Congress (TUC) or TUC-affiliated union. These independent panels heard and made legally-binding rulings in relation to employment law disputes. Under the Employment Rights (Dispute Resolution) Act 1998, their name was changed to Employment Tribunals from 1 August 1998. Employment Tribunals continue to perform the same function as the Industrial Tribunals. The employment tribunals are an independent judicial body established to resolve disputes between employers and employees over employment rights. The tribunal will hear claims about employment matters such as unfair dismissal, discrimination, wages and redundancy payments.

Although similar to a court employment tribunals are less formal, for example no one wears a wig or gown, and like a court they cannot give out legal advice. Almost all hearings are open to the public, and evidence will be given under oath or affirmation, and if anyone was to lie in court they can be convicted of perjury.

It is often better that the parties involved try to resolve the matter either informally or formally before a claim goes to the tribunal. If despite trying to resolve an issue the employee feels they are likely to make a claim either the employee or employer can ask for an Acas conciliator to speak to both parties and try to help reach an agreement, this is called pre-claim conciliation.

Once a claim to the employment tribunal has been made and accepted it will be given a case number, and a copy will be sent to the respondent (employer) together with a response form on which they must provide information to say whether they do not agree with your claim and, if so why.

In most cases a copy of the claim and response form will be sent to Acas. An Acas conciliator will act as an independent, impartial third party who will try to resolve the claim without the need to go to a tribunal.

Employment Tribunals hear claims about matters to do with employment. These include:

• Unfair dismissal
• Redundancy payments and
• Discrimination.

The Tribunal Process;

Employment tribunal hearings usually take place before a legally qualified employment judge and two lay members, one nominated by an employers’ organisation and the other from a union or employees’ body.

The employment tribunal process is impartial, but in an unfair dismissal claim it does generally start by assuming that there is a case for the employer to answer.

Tribunals try to be guided by what is reasonable. They will take into account prevailing standards and practices in your industry and recognise that special difficulties can arise in smaller firms.

Awards made by the tribunal are aimed at compensating the employee, not punishing the employer.

The starting point for tribunal decisions is statute law.

Employers must have followed fair and transparent disciplinary and grievance procedures.

Failure to do so can result in an employment tribunal increasing any award payment by 25%.

The Acas Code of Practice also provides valuable guidelines, particularly in unfair dismissal cases.

The process begins when the claimant submits a form (ET1) to a regional tribunal office. In it they explain the basis of their complaint and state whether statutory workplace dispute resolution procedures have been followed.

You will be sent a copy and must respond (on form ET3) within 28 days of the date the form was sent out, or risk losing your right to contest the case.

What you say in your response is the case you will be putting to the tribunal, so give a considered reply.

If you have a good reason, you can ask for an extension beyond the 28-day period.

1.4 You will be sent a date for the hearing.

Any request for a postponement should ideally be made immediately.

If a date is just impossible for you, tell the tribunal, giving good reasons. (If you will be abroad, send a copy of your air ticket.)

When you reply, tell the tribunal if you think the case is likely to be complicated.

1.5 The tribunal will copy the papers to ACAS, as ACAS has the discretionary power to offer conciliation.

ACAS tries impartially — and often successfully — to help parties settle out of court. Well over half of all claims are settled or withdrawn before the hearing.

Preventing disputes

Procedures can be the key to success, as long as you stick to them. The law requires you to comply with minimum workplace dispute resolution standards.

A company handbook, distributed to everyone, lets employees know where they, and you, stand.

Apart from careful recruitment, training is the best form of dispute prevention.

Performance appraisals can help you nip problems in the bud.

Keep proper personnel records, covering absences, lateness, performance problems, and all warnings, spoken or written.

To prevent problems, it helps to know what the most common allegations are.

The most common are unfair dismissal claims, often based on allegations that there was no valid reason for dismissal, that fair and transparent procedures were not followed, or that ‘natural justice’ was not applied.

Cases involving redundancy usually revolve around unfair selection or failure to consult with employees.

Discrimination — on the basis of disability, sex, age, sexual orientation, race, pregnancy or maternity, gender reassignment, marital or civil partnership status, religion or belief — generates growing numbers of claims.

2. Before the hearing

When an application is made against you, it is the preparation you do before the hearing that is most likely to determine the outcome.

2.1 Check first to see whether the application is technically flawed.

For example, in unfair dismissal cases, the claimant must have two years’ service if they started on or after 6 April 2012, except where discrimination or inadmissible reasons for dismissal are involved. If they were employed before that date, they only need one year’s service.

The claim must be made within three months of the date of termination — except where the claimant thinks the matter is being dealt with internally, or in rare cases, at the tribunal’s discretion.

If the claim is invalid on technical grounds, write to the tribunal. Ask for a pre-hearing review to get the claim thrown out.

2.2 Investigate the issue again, to make sure of your ground before getting into a fight.

The manager responsible may have been misleading you.

2.3 Resolve the claim amicably, or settle (see 6), if it arose from a genuine misunderstanding.

For example, explain the reasons why an expected promotion was not given.

2.4 If you think the claim is almost certain to fail, request a pre-hearing review.

The tribunal will look at relevant documents.

2.5 If the hearing goes ahead, be clear about the costs and benefits of fighting the case.

Even a fairly straightforward case can drag on for months.

The cost in disruption and management time can be considerable. A case can also damage the credibility of your business. Some cases are worth defending to signal your resolve to other employees.

2.6 Prepare a realistic case strategy, based on your strengths.

2.7 Prepare evidence to show the background to the case and to prove what happened.

General evidence provides the background — contracts of employment, employee handbooks and your HR policy statements. Specific evidence relates to the case itself.

2.8 As part of your preparation for the hearing, you can seek further particulars of the claim from the other side.

 For example, are there any further allegations that will be made against you?

If you need more information, ask for it.

If it is not handed over, write to the tribunal to make your request, compelling the claimant to give you the information.

You must respond reasonably to requests for information from the other side.

If you are on the receiving end of a request that you think is silly or goes too far, ask the tribunal to verify it.

2.9 You will usually need to exchange documents in advance of the hearing.

You must prepare witness statements beforehand (see 3) and agree a ‘bundle’ of relevant papers with the other side.

Witness statements and the bundle (good photocopies, with the pages numbered) must be handed over. You will need at least six copies, one each for the three members of the tribunal, both parties and the witness.

Your legal costs

Compared with going to court, the legal costs of going to tribunal are low. Depending on the case and your experience in these matters, you may not even require a solicitor.

Each side generally pays its own legal costs, regardless of who wins the case.

A party warned at a pre-hearing review that the claim had little prospect of success might have to contribute to the other side’s legal costs.

If either party (or its representatives) behaves abusively, disruptively or unreasonably during the case, it can be ordered to pay costs of up to £10k.

A straightforward unfair dismissal claim might cost £5k to £7k to defend.

A discrimination case, which by its nature is complex and uncertain, could cost £25k.

3. The hearing

Employment tribunal hearings are less formal than the courts. The running order is not necessarily fixed and belligerent questioning will be stopped. But the hearing will still be purposeful, with an emphasis on clarity, evidence and the merits of the case.

3.1 The hearing is public and open to the press.

The employer generally goes first in an unfair dismissal case and the claimant goes first in a discrimination case.

If you do not turn up, the case is likely to go against you. If ill, send a medical certificate and ask for an adjournment.

3.2 Tribunals have their own rules, quite different from those in the courts.

Evidence is assessed on the balance of probabilities. You do not have to prove anything ‘beyond reasonable doubt’.

3.3 When it comes to the main evidence in the hearing, tribunals prefer witnesses, who can be questioned under oath, to written statements on their own.

The tribunal will itself generally question witnesses, in an informal manner.

Do not have too many witnesses.

Use your witness statements to establish straightforward facts.

Provide witnesses to the main events.

If you are cross-examined, remain cool, factual and polite.

Bring in a senior company representative to explain your employment policies.

Expert witnesses are rare in tribunals. Use one if the case turns on a technical point.

In general, avoid character witnesses.

Witness orders can be used by either side to compel witnesses to attend.

3.4 The two sides usually pay their own costs.

Claimants cannot obtain legal aid, except to help in preparing a claim.

If the claimant belongs to a trade union, it may advise and represent him or her.

4. The decision

4.1 The decision will usually be announced at the end of the case or a few days later. In some complex cases, however, the delay can stretch into weeks or even months.

4.2 Both sides are sent a written decision, with the reasons for it in summary or full form.

Ask for full reasons if an appeal is possible.

4.3 If you do not like the tribunal’s decision, you can ask it to review the case. This must be done within 14 days of the decision.

4.4 You may want to appeal to an Employment Appeal Tribunal.

Appeals must be made within six weeks and be based on a point of law. Few succeed.

5 Awards

5.1 For unfair dismissal, the amount is made up of two elements.

A basic award, calculated on a fixed formula, taking into account age and service. This award is capped at £13,5k.

A compensatory award based on the loss of past and future earnings and how unfair the dismissal was. Compensatory awards are capped at over £74k — although they can be higher in certain cases (eg whistle-blowing or health and safety claims).

In rare cases, the tribunal may insist that an employee is reinstated.

5.2 Breach of contract awards in tribunals are capped at £25k.

Alternatively, a claimant can make an unlimited claim in the ordinary courts.

Typically, this might happen if a director claims substantial compensation under the terms of an employment contract.

5.3 Discrimination case awards are unlimited.

As well as loss of earnings, claimants can claim damages for injury to feelings.

6 Agreed settlements

Reaching a settlement, without waiting for the tribunal, may well be in your best interests.

6.1 A settlement may include a cash sum and other negotiable elements.

The settlement usually involves money and a reference, with agreed wording, if the employee has been dismissed. This reference is a key bargaining counter.

No-one can usually oblige you to give a reference that does anything more than confirm the dates of employment and the employee may need more than that.

A confidentiality clause may be a valuable part of the deal — something you cannot get from a tribunal, even by winning.

Realistically, though, details of the settlement may still leak out. Bear in mind the impact of this on other employees.

6.2 There are two main routes to reaching a settlement.

Conciliation through ACAS can frequently lead to a legally binding agreement, known as a COT3 settlement.

You can use a ‘settlement agreement’, under which the employee receives independent legal advice and can then waive his or her statutory employment rights, in return for an agreed settlement.

However, the underlined agreement is legally binding and can be drawn up before or after a claim has been brought forward. The employer usually pays the employee’s legal costs.

7 Getting help is very essential. At Humba-HR-Consultants we urge people to always utilise staff to get the necessary information in order to provide the best services or products.

7.1 ACAS, besides conciliating in specific cases, provides publications and training courses.

               *You will need to seek legal advice, from either a solicitor or a specialist consultant.*