Litigation, it’s a word that strikes fear in to the heart of business owners and causes concern and anxiety for those involved. However it doesn’t have to. Learning how the tribunal process works and how it could affect you if you are called as a witness will make the process a bit easier and less scary, writes Zuraida Curtis, Regional Litigation Manager at Croner.
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 and employers and trade unions.
A President presides over the Tribunal system which is split into regions throughout England and Wales. Scotland and Northern Ireland have separate (albeit largely similar) tribunal systems and rules of procedure. Each region is headed by a Regional Judge.
How a full tribunal works
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. At present a full tribunal is required for unfair dismissal cases however from April 6 2012 judges will sit alone for these cases.
Employees, workers and job applicants rejected at the recruitment stage can bring tribunal proceedings (referred to as claimants). In order to bring a claim of unfair dismissal employees or workers need to have completed a certain length of service. Prior to April 6 this was one year’s service, however from this date, the qualifying period for unfair dismissal increases to two years for those starting a new job on or after April 6 2012.
Employment tribunals deal with some of the most complex legislation. The Rules of Procedure are also complex. Careful planning is necessary in all but the most simplest of cases. Preparation includes putting together a bundle of documents for use at the hearing, drafting witness statements, preparing cross-examination and closing submissions. There are also regional variations in the approach of tribunals. 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 and attract adverse publicity. In addition, decisions cannot be easily appealed.
How a claim is made
To initiate a claim, a claimant files a claim on a prescribed form called the ET1. In most cases, the ET1 has to be lodged within three months of the date of dismissal or date of 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 (known as the respondent) who then has 28 days in which to file a reply on a prescribed form. The response is called an ET3. It is important to ensure that appropriate legal defence is pleaded in the ET3 and that it is factually correct. If the respondent fails to file a response, the tribunal may issue a default judgment, which means an automatic judgment in favour of the claimant. The respondent will almost certainly be prevented from playing any further part in the proceedings. Respondents can apply for a review of the decision to issue a default judgement.
The Advisory, Conciliation and Arbitration Service (ACAS) are an independent body, which was established by the Government to assist parties in facilitating a resolution to the dispute without the need to attend the tribunal hearing.
Once a claim is presented to the 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 settling a matter for the employer include business efficiency, avoiding adverse publicity. Plus it can be cheaper than incurring the cost of a hearing and potential award. The benefits of settling a matter to a claimant include saving costs and avoiding the trauma of a hearing, in addition settlements are not subject to social security recoupment and settlements can incorporate agreed references. Only certain types of settlement are legally binding as the law prevents parties from contracting out of statutory rights.
Settlement can take place at any time during the proceedings. They can even take place at the door of the hearing. Where cases are settled at the Tribunal, ACAS are unlikely to be involved. Instead it would fall to the representatives and their clients to agree the terms of the settlement and informing the Tribunal accordingly.
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 and better particulars, requesting written answers and attending to 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 (CMD) or a Pre-Hearing review may be held to narrow/clarify the issues or decide any preliminary points.
Preparation of the case
Evidence at the hearing will be in the form of documentary evidence (bundle of documents) and witness evidence (witness statements – 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 be struck out or costs could be awarded against the party.
Witness statements should be thorough and will be subject to high scrutiny by the tribunal. They must be a clear account of what happened and should be consistent with the ET3.
At a hearing, each party calls their witness in turn. Witnesses are required to give evidence on oath or under civil pledge.
In unfair dismissal claims the respondent leads evidence first if the dismissal is admitted. If dismissal is denied then the claimant leads evidence first. In discrimination claims the claimant usually leads evidence first. However on some occasions tribunals allow respondents to lead evidence first if the discrimination claim is combined with an unfair dismissal claim. For all other claims the claimant leads evidence first.
Previous practice required a witness to read his or her witness statement to the tribunal. However from April 6 2012 witness statements will be taken as read. The representatives are sometimes allowed to ask supplementary questions. This is followed by cross-examination and re-examination if necessary. Both sides follow this process.
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 to dismiss the case i.e. find in favour of the company. Alternatively, if the tribunal finds in favour of the claimant then they may make an award. Sometimes however the tribunal may reserve its decision, which means it does not give a verbal decision on the day. A separate hearing (a ‘remedy’ hearing) may be organised to consider what the award should be.
Employment tribunals can be a daunting experience but they need not be especially if you are well prepared and have the assistance of an expert team.