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Employment tribunals can be daunting experiences. But what exactly are there and how do you prepare for them?
Read on to find out more.
What is an employment tribunal?
An employment tribunal is a judicial body similar to a court with its own rules and procedures. Employment tribunal’s deals with most employment rights covered by modern employment legislation and are designed to resolve disputes between employers and employees.
How does a full tribunal work?
A full tribunal comprises of an employment judge, who must be a solicitor or barrister with at least seven years’ experience and two lay members appointed from either side of industry, for example, a company director and trade union official.
The employment Judge leads the proceedings and advises the lay members of the law and delivers the decision. Lay members have equal status to the judge and can overrule them however this rarely happens in practice.
What might lead to a full tribunal?
There are several issues that could lead to an employment tribunal. These are:
- An employee not having a contract of employment, or having one which is unclear, leading to confusion regarding the employment relationship.
- Outdated contracts which haven’t been changed in line with changes to business operations, such as opening times.
- Employers slow or late action in response to complaints such as discrimination.
- Employers failing to follow codes of practice when dealing with disciplinaries or grievances.
- Employers poor handling of inadequate performance leading to claims of unfair dismissal.
What is unfair dismissal?
Unfair dismissal is where an employee believes that they have been dismissed from a workplace unfairly or without reason.
In order to bring a claim of unfair dismissal employees or workers need to have completed a certain length of service. The qualifying period for unfair dismissal is now two years in the UK.
Any tips for attending an employment tribunal?
Yes, be prepared. Employment tribunals deal with some of the most complex workplace legislation. Careful planning is necessary in all cases. Preparation includes:
- Putting together a bundle of documents for use at the hearing
- Drafting witness statements
- Preparing cross-examination and closing submissions.
Employment tribunals now also impose strict timetables throughout the life of the claim with serious consequences if these are not adhered to.
A tribunal claim can also be:
- Costly
- Waste valuable management time
- Attract adverse publicity.
In addition, decisions cannot be easily appealed. All this makes it often better and easier to settle matters privately away from the courts.
How do employees make a tribunal claim?
To initiate a claim, an employee (or former employee) will file a claim on a prescribed form called an ET1. In most cases, the ET1 has to be lodged within three months of the date of dismissal or date of the incident. In the case of a redundancy claim, the ET1 must be lodged within six months of the redundancy dismissal.
Once a claimant has submitted an ET1, the Tribunal serves the ET1 on the employer who then has 28 days in which to file a reply on another prescribed form. The response form is called an ET3. It is important to ensure that appropriate legal defence is lodged in the ET3 and that it is factually correct.
If the employer fails to file a response, the tribunal may issue a default judgment, which means an automatic judgment in favour of the employee and the employer will almost certainly be prevented from playing any further part in the proceedings.
Who are ACAS?
The Advisory, Conciliation and Arbitration Service (ACAS) are an independent body, established by the Government to assist parties in facilitating a resolution to disputes without the need to attend tribunals.
Once a claim is presented to a tribunal, ACAS will contact the parties and offer their services to assist in resolving the matter. ACAS’ role is neutral, but they will provide information to a claimant, particularly if they are not represented to help them understand the system and what they are required to do to facilitate a settlement.
The benefits of using ACAS include:
- Timeliness and efficiency. ACAS can help bring proceedings to a close swiftly.
- It can help avoid adverse publicity. This is especially important from the employer’s point of view.
- It can reduce costs. ACAS may help prevent a full tribunal hearing which can be expensive.
- It avoids the trauma of a hearing. Tribunals can be daunting, especially for employees.
What are interlocutory procedures?
Interlocutory procedures are those that take place after the submission of the claim and before the actual hearing date. These procedures could include:
- Serving and replying to a discrimination questionnaire
- Requesting further information and particulars
- Requesting written answers
- Dealing with disclosure of documents.
The tribunal may issue orders and directions instructing parties on how to manage the case and setting deadlines.
In some cases, a Case Management Discussion or a Pre-Hearing review may be held to clarify the issues or decide on preliminary points.
How do I prepare my tribunal case?
Evidence at the tribunal hearing will take the form of documentary evidence (bundle of documents) and witness evidence (witness statements and personal testimony).
Agreed bundles are usually prepared for the tribunal and parties are under a duty to include all relevant documents even if they do not assist a party’s case. If a party attempts to conceal documents and the tribunal find out, the relevant party could find their case dismissed.
Witness statements should be thorough as they will be subjected to high scrutiny by the tribunal. They must be a clear account of what happened and this should be consistent with the ET1 and ET3 forms.
What happens at a tribunal hearing?
At a hearing, each party calls their witness in turn. Witnesses are required to give evidence on oath or under a civil pledge.
In unfair dismissal claims the employer will present their evidence first if the dismissal is admitted. If dismissal is denied, then the (former) employee will prevent their evidence first.
In discrimination claims the employee (or former employee) usually presents evidence first. However, on some occasion’s tribunals may allow employers to present evidence first if the discrimination claim is combined with an unfair dismissal claim.
For all other claims, the employee (or former employee) will present their evidence first.
After all the evidence has been given the representatives will make their closing submissions and the tribunal will then retire to make their decision. Unless it has been a long or complicated case decisions are given on the same day. The decision may be one of the following:
- Dismissal of the case – this is where the tribunal finds in favour of the company.
- Make an award – this is where the tribunal finds in favour of the claimant and sets out compensatory measures.
Sometimes the tribunal may reserve its decision, which means it does not give a verbal decision on the day. A separate hearing may be organised to consider what the award should be.
In conclusion
Employment tribunals can be a daunting experience, but they need not be if you are well prepared.
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