Employment Tribunals were originally established to provide quick and simple resolution to difficulties arising in the workplace without it being necessary to have recourse to lawyers. Employment Law has become vastly more complicated in the intervening years, so much so that it is now advisable to seek advice and/or representation.
Claims to employment Tribunals are usually heard by an Employment Judge who is legally qualified and two lay members, one selected after consultation with organisations representative of Employers and one selected after consultation with organisations representative of Employees.
Employment Tribunals deal with claims for unfair dismissal, redundancy, disputes over wages, discrimination claims and most employment related claims.
A frequent cause of difficulty is that of time limits. Claims brought out of time will almost invariably fail. The rules in relation to time limits are too complicated to outline in detail here. The time limits are short (most commonly within 3 months but 6 months for redundancy, running from the act complained of). The date will be calculated exactly and even being one day out can be fatal. It is possible to apply to extend the time limit, but those applications are only very sparingly granted.
Claimants must apply to ACAS for early conciliation and can only apply to the tribunal once this has been attempted - this is a pre-cursor for almost every claim.
A Tribunal claim is triggered by sending a completed ET1 (claim form) to the Tribunal. If the application is in proper form the Tribunal will formally issue it and send a copy to the other party (known as the 'Respondent') who must file a written reply (ET3). If the Respondent fails to respond the Claimant can apply for default judgment. It will be for the Judge’s discretion whether this is to be allowed in respect of liability only or whether the judgment will finalise the amount of any compensation. A default judgment on quantum of compensation is likely only in straightforward cases, such as unlawful deductions from earnings.
If a response is filed the Tribunal will issue an order giving directions as to how the case is to be managed to a final hearing. The sorts of directions likely include directing one party to file more details of their claim or defence for the filing of statements for witnesses, or that one party disclose relevant documents. The Tribunal can penalise (either with orders for costs or by striking out claims/defences) parties who do not comply with the directions timetable.
The Tribunal may conduct a pre-hearing review. These hearings permit one party to apply for more draconian orders, for example striking out a claim or defence in part or whole for a variety of reasons, including that it has no reasonable prospect of success, where a party has failed to actively pursue their claim or there has been a failure to comply with the directions timetable.
At the final hearing consideration must be given to:-
- Ensuring that all relevant witnesses attend. Reluctant witnesses can be compelled to attend by applying to the Tribunal for an order requiring them to do so.
- Preparation of documents, such as bundles of pleadings and other key documents agreed with the other party.
- What evidence is required to support or resist a claim. This will require consideration of whether the witness statements are adequate and whether there is sufficient evidence (for example) to verify loss of earnings claims.
At the final hearing the party who has to prove their case will usually present their case first. For example in unfair dismissal cases the burden will be upon the employer to show the reason for dismissal and he will present his case first. The normal procedure is for witnesses to read their statements and then be cross questioned by the representative for the other party. At the end each party is entitled to address the tribunal and summarise the arguments in favour of their case.
The Tribunal must then reach a decision (either unanimously or by a majority). Sometimes the Tribunal may not be able to reach a decision immediately and the judgment may be delivered a few weeks later.
The Tribunal does have the power to award costs but this power is relatively rarely exercised. Costs may be ordered if one party has pursued or defended a claim either in an unreasonable manner or where the claim/defence clearly has no prospect of success.
The Employment Tribunals are not able to enforce their own money judgments, which must be registered in the County Court and be enforced as an ordinary civil debt.
Any party to an Employment Tribunal decision may appeal an adverse decision. The appeal is dealt with by the Employment Appeal Tribunal (a division of the High Court). The grounds of appeal are limited and advice should always be promptly sought before an appeal is made.
This briefing note can be no more than an overview and we strongly recommend that you take prompt advice if you are intending to take or resist Employment Tribunal proceedings.