Talk:Employment tribunal

Tribunal Fees

Suggesting adding a section on Tribunal Fees, referencing the https://www.gov.uk/government/publications/employment-tribunal-fees site, thoughts?

Since October last year (2013) fees have become payable on employment tribunal hearings the amount of the fee depends on whether the claim falls under those listed as Type A or Type B claims. The issue fee for a Type A claim is £160, with a hearing fee of £230. The issue fee for a Type B claim is £250, with a hearing fee of £950.

Type A claims are claims that are considered by the tribunal to be more straightforward to deal with, for example unpaid wages. type B claims are more complicated, such as unfair dismissal.

There are rebates on the fees available depending on the claimants financial circumstances and different rates apply for group claims and Employment Appeal Tribunal hearings.

Artasadrug (talk) 12:02, 3 January 2014 (UTC)

Proposed merger of Industrial Tribunal

I have proposed that Industrial Tribunal be merged here since they are essentially describing the same thing by a different name, in fact the article even says as much. Simon KHFC 22:57, 29 April 2007 (UTC)

Should be routine I think: an official change of name. New page on employment tribunal looks a lot better than the old page on industrial tribunals.

External links

External links on Wikipedia are supposed to be "encyclopedic in nature" and useful to a worldwide audience. Please read the external links policy before adding more external links.

The following kinds of links are inappropriate:

• Online discussion groups or chat forums
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• Multiple links to the same website
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I realize that some links are helpful to certain users, but they still do not comply with Wikipedia policy, and therefore must not be included in the article. If someone would please do an "audit" of the remaining links at the end of this article, that would be great. WhatamIdoing (talk) 07:17, 17 January 2008 (UTC)

Merge work?

The following was sitting on the UK labour law page, and I think it could be merged into here (though perhaps the material here is more concise?). Wikidea 13:55, 23 November 2009 (UTC)

Internal employer process

Recent legislation (particularly the Employment Act 2002) has stressed the importance of employees and employers resolving their differences between them prior to starting costly legal disputes. All employees have the right to raise formal grievances against their employer. If they do so, the employer should arrange for a meeting between the parties to discuss how to resolve their differences. If the employee remains dissatisfied, they can appeal the outcome of the first hearing. A failure on the employee's part to follow this procedure may preclude a claim for constructive dismissal, and a failure on the employer's part may lead to an increase in the compensation payable to the employee if he successfully pursues an employment tribunal claim. For more information on these rules.

Employment tribunals

After the employer's own processes, such as disciplinary hearings and internal appeals, have been exhausted, employment law cases usually start by the aggrieved employee presenting a complaint to an Employment Tribunal (ET). These (as Industrial Tribunals) were set up under the 1964 Industrial Training Act, although they now have a substantially greater role. They have sometimes been referred to as industrial juries.

A full ET panel consists of a Chairman (whether a man or a woman, and who is an experienced solicitor or barrister with at least seven years post-qualification experience) and two "wing members" who are lay persons with skills and experience useful to the Tribunal in making a decision. One wing member will have a background representing employees (typically as a Trade Union officer) and the other will have a background in business (most often as a Personnel manager.) All members have equal voting rights, although if there is a two-person Tribunal (which the parties must agree to) it must include a Chairman and the Chairman has a second or casting vote if the Tribunal disagrees on a Judgment. Employment Tribunals are governed by Rules of Procedure, the current version are the Employment Tribunals (Rules of Procedure) Regulations 2004.

Preliminary hearings to clarify issues in the case are a frequent part of the Tribunal process: these are typically dealt with by a Chairman sitting alone. Northern Ireland offers a Fair Employment Tribunal and an Industrial Tribunal. These are administered by OITFET - the Office of the Industrial Tribunal and the Fair Employment Tribunal.

Tribunal process

An Employment Tribunal will hear specific complaints from an aggrieved party being deprived of their rights, including (but not limited to) unfair dismissal, discrimination and unlawful deduction from wages. Almost all complaints are made by employees or workers, or former employees or workers. The website of the Employment Tribunals carries a jurisdiction list, explaining what complaints or references can be heard.

The process is almost always started when a Claim Form is presented to the Employment Tribunal. The Employment Tribunal will, if it accepts the Claim Form, then send it to the respondent (usually the former employer) and the respondent must submit a response form within twenty-eight days of the Claim Form being sent to it, or else the Tribunal may enter a default Judgment, and the respondent may not take part in proceedings. Any preliminary issues are dealt with at a case management conference or a pre-hearing review, a period of time is allowed for ACAS (GB) or the LRA (NI) to explore settlement options, although in cases involving discrimination, there is no limit on the involvement of conciliators. The Employment Tribunal may send out Orders to the parties which typically involve, in England and Wales, the exchange of documents, the production of an agreed bundle of documents and the exchange witness statements The order of a hearing will usually depend upon which party has to face the burden of proof. In complaints of Unfair Dismissal, if the employer admits the dismissal and the employee has more than one year's service at the time of dismissal, then the employer has to show that the dismissal was for a fair reason. The employer will therefore open the proceedings and give evidence first. In a discrimination claim, if the discrimination is not admitted, then the employee or worker will have to prove that discrimination occurs and will therefore open the case with evidence. Employment Tribunals are, however, entitled to be flexible and can vary this practice. If there is a combination of a dismissal and discrimination, the employer will usually open proceedings. Cases not resolved in their allocated time may be carried over to later date(s) for further consideration of the merits and (if necessary) a separate remedy hearing to discuss the award only. A summary judgment is given at the conclusion of the hearing, with the parties given a further 14 days to request (unless they ask on the day) 'extended' written reasons behind the judgement. In Scotland, it is customary for all decisions to be reserved and sent to the parties in writing.

Complaints to tribunal and time limits

A complaint of unfair dismissal can only be made where there has been a dismissal, so that there is no general right to complain of unfair treatment. Sometimes, the parties may disagree if an employee has been dismissed or has resigned. An employee may, however, complain at any time that they consider a statutory 'employment protection' right has been infringed. Where this takes place in connection with a dismissal an employee may combine this with their complaint against the dismissal.

Except where no qualifying time limit applies (as in the case of 'statutory rights') an employee needs to have worked for their employer for a least a year in order to make a complaint of unfair dismissal to an employment tribunal. This year does, however, include the statutory minimum period of notice that an employee is entitled to under the Employment Rights Act 1996, which in the case of an employee who has worked for more than one month but less than two years, is one week, so if an employee is dismissed within a week of completing a year's employment, the minimum notice is added, and the employee is carried "past the post" by the Employment Tribunal adding a notional week of service, unless the employer is entitled to dismiss without notice in response to a repudiatory breach of contract by the employee. A claimant may raise a complaint of discrimination without claiming dismissal or whilst also claiming dismissal but without one year of service. Claimants with less than one year's service may find their unfair dismissal claim is brought to a pre-hearing review where they are asked to explain why they feel they can bring a claim without a year's service, i.e. dismissal due to a public interest disclosure or for being a trade union member. Most tribunal offices however write to the claimant upon receipt of their claim form telling them that they have 14 days to show why their claim should be heard, otherwise the chairman will strike out the claim.

In certain circumstances, an employer's conduct could be such that an employee is entitled to resign in response and to regard that as an unfair "constructive" dismissal. Failure by an employer to extend a fixed term contract under the same terms as before can also be an instance where a claim for unfair dismissal may be made.

Preacceptance protocols

A complaint of unfair dismissal must be made to an employment tribunal within 3 months of the effective date of termination of the employment, unless it is not reasonably practicable to present the complaint. This time limit is strictly enforced, and even a day's delay means that the Employment Tribunal has no jurisdiction to hear the complaint. If the claim is of constructive dismissal, the complainant must first raise a grievance in writing with the employer before submitting a complaint.

If the substance of the complaint has been raised in writing with the employer either before or within 4 months of termination, then a claimant has 6 months from the effective date of termination to submit a complaint of Unfair Dismissal to an Employment Tribunal. If the substance of the complaint has not been raised either before or within 4 months of termination, the ET has no jurisdiction to hear a complaint of Unfair Dismissal. If a grievance is submitted by the end of the fourth month from termination, the claimant has a further two months within which to submit a complaint to an ET. If making a complaint of an express unfair dismissal, i.e. not a "forced resignation" the employee is not required to raise a grievance.

Most solicitors within the UK will submit all complaints on the claim form (ET1) within the three months from the effective date of termination (EDT) "to protect their client's position", with some of the claims being rejected and subjected to the preacceptance protocol. If the former employee has not raised a grievance, then the sending of the Claim Form to the employer can count as a grievance. The ET should reject the Claim Form and return it to the claimant. The claimant (or the claimant's advisers) then must wait 28 days and then simply resubmit the same claim with the grievance information filled in, which allows the tribunal to proceed to accept the preaccepted claims. Claim forms which are rejected entirely and subject to preacceptance in whole, are not notified to the respondent at all, as preacceptance is an administrative decision. Only if part of the claim is accepted with the rest subject to preacceptance, is the claim form served on the respondent with a blank response form which must be submitted to the ET within 28 days.

If a claimant has not submitted a complaint with the 3 month period, the tribunal will likely invite the claimant to write to the chair of the tribunal explaining why they feel the claim should be accepted out of time, within 14 days of the tribunal writing to the claimant. Those tribunals that do not pick this up will invite the respondent to address this in the response form (ET3) and a pre-hearing review will most likely be arranged to discuss the same.

The pre-acceptance process introduced by the Employment Act 2002 has been heavily criticised as complex and unwieldy. The Department of Trade and Industry has issued a consultation paper seeking views on a repeal of the statutory dispute resolution procedures, and is currently considering the responses submitted.

Tribunal awards

If a claimant is successful in a claim for unfair dismissal then they can be given a "compensatory award". There is no statutory restriction on what may be awarded under this heading, except that it must be "just and equitable in all the circumstances". In the main a compensatory award reflects past loss of earnings, together with a sum for future loss of earnings. A notional sum is often awarded for "loss of statutory rights" (For example: The need to work a further 12 months to re-acquire the right to complain of unfair dismissal) . The compensatory award is limited by a statutory cap (from 1/2/2005 this was £56,800). This "cap" is increased annually in line with inflation (from 1/2/2006 it was £58,400 and from 1/2/2007 it is £60,600). The statutory cap does not apply to claims for discrimination, nor does it apply to unlawful deductions from wages.

Where the unfairness in a dismissal is procedural only, a respondent may be able to claim that the employee's compensation should be limited to the period the respondent would have needed to dismiss the employee fairly in any event - as when making assessments in selecting particular employees for redundancy, for instance. This is known as a "Polkey" reduction. An award may also be reduced because of contributory fault on behalf of a claimant, i.e. the claimant's conduct broke down the employment relationship to some degree or disrupted the grievance or disciplinary proceedings. In some cases this may be as much as 100%, so that an employee might take home nothing. An employee is entitled to a declaration that s/he has been unfairly dismissed, and this can be some solace if compensation is low. Where, however, there has been a failure to comply with the statutory dismissal and disciplinary (or grievance) procedures (as set out in the Employment Act 2002), and the dismissal is "automatically" unfair, the Employment Tribunal will increase the award made by between 10% and 50%. (There is currently a review underway to determine whether or not to revoke the statutory procedures and/or the impact of failing to comply with them).

Compensation for discrimination claims is not subject to statutory limits however and, in the case of highly paid employees, can be substantial. Compensation is awarded in discrimination cases under a distinct head known as "Injury to feelings." A number of leading cases, principally the "Vento" case, provide guidance to the Tribunal on how to determine the value of an injury to feelings award. There are three bands: the lower band (£500-£5000), the middle band (£5,000-£15,000) and the upper band (£15,000-£25,000). Occasionally, the value of a case can substantially exceed these guidelines, for example the case of Sergeant Gurpal Verdi, where he successfully pursued the Metroploitan Police for a sum in excess of £200,000. It must be recognised that these were extraordinary circumstances, however. Again, a failure by the employer to comply with the statutory grievance procedure will result in an uplift to the award of between 10% and 50%, whilst a failure by the employee will result in a corresponding reduction.

In addition, the tribunal is unable to award more than £25,000 in respect of a claim for breach of contract, as the law imposes a cap on the amount of the compensation payable. Claimants with large contractual claims should therefore carefully consider whether it would be more appropriate to issue proceedings in the High Court or County Court.

Recoupment

Some awards are subject to the Recoupment Regulations, which allows the Department for Work and Pensions (DWP) to recoup (recover) any income support or job seekers allowance paid to the claimant during the time after the EDT and before the tribunal hearing. The DWP should issue a Recoupment Notice detailing how much is to be repaid by the respondent to the DWP, with the balance due to the claimant. This can only be applied if there is a Tribunal Judgment, so it gives the parties reason to settle before a hearing. If the employee has had a large amount of benefits, the employer will have to pay that to the DWP and the employee will get nothing. Sometimes the parties agree to split the difference in a settlement, saving the employer money and giving the employee money which otherwise would be paid to the DWP.

Legal costs

Whilst the tribunal has the power to order a party to proceedings to pay the costs of the other side, in practice this is not regularly done. It is perceived as being contrary to public policy to create an environment in which claimants hesitate to issue a claim for fear of financial penalties.

This has a huge impact on the conduct of tribunal cases. If a party is legally represented, their costs of fighting the case from start to finish would be in the region of £5,000-£6,000 for even a relatively simple unfair dismissal claim. This means that many cases with little or no merit are settled for small sums because to fight and win is more expensive than to settle. Conversely, legally represented claimants often settle for less than they would be entitled to in order to avoid their costs.

ACAS and LRA settlements

See also: Acas

Given the Tribunal's costs regime, only about a third of cases issued in the ET ever reach a full hearing: most are either withdrawn or settled. Crucial to this process are ACAS officers, who are routinely assigned to each new claim. They act as "middlemen," passing offers of settlement between the parties on a "without prejudice" (off the record) basis.

Settlements agreed out of the employment tribunal hearing via ACAS in the UK or the LRA in NI are legally binding once verbally agreed. ACAS settlements are effected on form COT3 whilst LRA settlements are usually effected on form CO3 or CO3(C). Settlements that are not honoured are enforceable in the local county court or sheriff's office with the defendant liable also for the claimant's legal fees (usually £30).

Reviews and appeals

Either party can ask an employment tribunal to review its own decision and, independently, may appeal the decision to a higher court, the Employment Appeal Tribunal (EAT) on one of three grounds (1) an error in law, (2) a finding of fact not supported by evidence, or (3) a finding of perversity. Strict time limits apply in both cases.

The decisions of the EAT are treated as binding precedents by employment tribunals. The EAT is staffed by Judges and lay members, who come from both sides of industry as in the Employment Tribunals. The composition of the EAT will mirror the composition of the Employment Tribunal that took the decision appealed against, although the EAT can have four lay members in exceptional cases. The Judges are usually English and Welsh Circuit Judges or High Court Judges, including a President, who is a High Court Judge sitting permanently in the EAT, and at least one Scottish Judge of the Court of Session. There is one EAT for Great Britain, which leads to English Judges sitting in Scotland, a different jurisdiction, and vice versa.

An EAT decision may be appealed to the Court of Appeal (in England and Wales) or the Inner House of the Court of Session (in Scotland), and after that to the House of Lords. At any stage in the process of hearing a claim or appeals therefrom, a question on the interpretation of European law may be referred to the European Court of Justice.

Working as an Employment Lawyer

Solicitors who represent individual or a group of employees (a union) where the issue is common to the group; will work on collecting information & research; preparing documentation such as contracts, claims, pleadings, etc; providing advice to clients and conduct negotiations & settlements on behalf of clients.

References

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