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How to handle employment tribunals

An employment tribunal is essentially a court, and its task is to hear and adjudicate on employment-related disputes that have arisen between an employer and a member, or members, of the workforce. Although it might lack the strict formality of a court, nevertheless, like a court, a tribunal is obliged to act independently and is not allowed to dispense legal advice.

Tribunals hear complaints - or applications as they are called - and any subsequent appeals covering a wide range of employment law. Areas include, among others, equal pay, unfair dismissal, sex, race and disability discrimination, redundancy payments, the national minimum wage, breach of contract, trades union membership, and maternity and paternity leave. Hearings usually take place at permanent tribunal offices located around the country.

A tribunal will normally have three members. One is the chairman, who will have a legal qualification and who is appointed by the Lord Chancellor. The others are lay members, who will have experience of handling work-related disputes and who are appointed by the Secretary of State for Trade and Industry. The lay members are chosen from a panel that represents both employers and employees. Appointment by the government does not indicate anything other than the absolute impartiality and independence of the members. Whether a chairman will sit alone or with the two lay members will be determined by the nature of the case.

The sole aim of the tribunal is to make sure each case is dealt with justly. Cases are handled in a manner that is judged to be proportionate to the complexity of the issues facing the tribunal. The prevailing standards and practices of the sector or industry concerned will also be taken into account, as will the special circumstances that arise within smaller companies. In all things, the tribunal will be guided by what is reasonable.

Applications

There is a general expectation on the part of tribunals that the employee who is making an application - or complaint - will have done so only after exhausting other reasonable opportunities for resolving the dispute by negotiation with the employer. This means tribunals will want to be reassured that the employee has first gone through any grievance or dispute process that the employer has set up within the company for dealing with such issues.

An employee, or employees, who wishes to make an application to a tribunal must do so within a set time span. That is, the application must be made within three months of the action or the event which is the source of the dispute.

Applications that are received outside the three months time limit will probably not be considered. In certain circumstances, however, a tribunal can admit late claims, though this will depend on the reason given for the delay. In the case of a late application, the tribunal may hold a preliminary hearing to consider the reasons for the belatedness of the application and to decide whether it can proceed further.

There are certain group of workers who currently excluded from making an application. Those, for example, who have reached the formal retirement age for their employment, or the state retirement age of 65 in the absence of a formal retirement age; those employed on a fixed term contract where the dismissal is the expiry of the contract and the employee has previously agreed to waive their right to complain of unfair dismissal; and the self-employed and independent contractors.

When an application has been made by an employee who is eligible to do so, the employer will be sent a copy of the application. Also enclosed will be a 'notice of appearance' form. This needs to be completed by the employer. In it, they are given the chance to state whether they wish to contest the case - they may not wish to - and their reasons for doing so. The form, or a letter if the employer chooses to indicate their position that way, must be sent back to the tribunal office.

The employer and the employee can ask to see the details of the other's case. Accuracy and promptness in completing the forms is important as this gives the tribunal a chance to identify the issue that is at stake in the case as soon as possible and to avoid the delay of having to request further, clarifying information. With all the relevant information at its disposal, a tribunal will then tell the parties of the date that has been set for the hearing.

Dispute resolution

Even at this stage, the parties will be offered the option of agreeing a settlement. The forms submitted by both the employer and employee will be forwarded to ACAS, the Advisory, Conciliatory and Arbitration Service. 

ACAS is an independent body and its purpose is to help employers and employees solve disputes that arise between them. ACAS will dedicate a conciliator to the case, and their role will be to establish if there is any agreement that can be reached between the parties in an effort to resolve the case voluntarily before it goes to the tribunal. Over half of all cases are settled or withdrawn in advance of the hearing.

It is usual for the conciliator to meet the two sides separately and then to arrange a meeting which both attend to discuss the issues. Although ACAS conciliators can talk the case through, picking out any legal points that need to be highlighted, they cannot be an advocate for one side or other of the argument.

As part of the conciliation process, it could be suggested that an employee be given their old job back or offered an alternative position. Employees who turn down such offers, while not offering reasonable grounds for doing so, may see any award that is later made in their favour reduced by the tribunal.

If the parties believe that conciliation may produce a settlement, they can request that the tribunal hearing be postponed. But should ACAS fail in bringing about an agreement, then the tribunal will go ahead.

The hearings

Employment tribunals are staged in a series of different hearings.

Directions hearing

A directions hearing is called by the tribunal if it is necessary to clarify the issues on which the tribunal will be ruling; or if it is to be decided what directions need to be given over matters like documents and witnesses. The parties could be asked to attend. The hearing is usually presided over by the chairman and, in most instances, no evidence is offered during its course.

Pre-hearing review

Sometimes a tribunal will arrive at the early conclusion that, on the evidence provided, the arguments of one or other of the employer or employee have only a very poor chance of succeeding, whether in part or as a whole. In which instance, a pre-hearing review will be arranged when the employer or employee - depending whose case is considered unlikely to win - will be requested to explain their argument. If the tribunal then believes that there is still little prospect of the case standing up, the employer or employee will be asked to pay a deposit of up to £500 if they wish to continue with proceedings. If the deposit is not paid on time, then the party runs the risk of their application or appearance being 'struck out' - that is, they will be unable to continue with either part of or the whole of the case.

Main or full merits hearing

It is at the main hearing that the tribunal decides whether the application is to succeed or fail, and, should it succeed, what redress is appropriate.

Preparing for a main hearing

Since documents are central to most tribunals, it is vital that the employer prepares all relevant paperwork well in advance. Not least this is because each side is entitled to advance notice - the minimum is 7 days - of the documents that the other intends using. Although neither side has to agree to everything in the documents, it often helps speed the process if both parties concur on a common bundle of documents which will be used in the case. Even when the relevance or admissibility of the document is disputed, it should still be brought to the tribunal.

Witnesses can be called at the tribunal to give evidence. Sometimes a tribunal will ask that the parties indicate beforehand how many witnesses they will bring to the tribunal. Witnesses can read out pre-prepared written statements as their main evidence. Such statements should, therefore, contain all the information that is germane to the case. Witnesses, once they have given their evidence, can be questioned by the other party and by the tribunal. Witnesses who are unwilling to attend can be ordered to do so by the tribunal, although the chairman will need to know the basis of the evidence they will be giving and why they are reluctant to appear voluntarily.

Remedy

Employees are required to declare at the hearing what redress they are seeking. This usually means financial compensation or re-instatement. The employer, therefore, should be able to present any evidence that relates to the remedy that the employee is seeking.

If the employee is successful and is asking for re-instatement, the employer will need to inform the tribunal as to: the availability of the employee's old job or of any similar positions; the employer's willingness to offer the employee their old job back or another similar position; and any practical reasons why the employee cannot be reinstated.

If the employee is successful and the tribunal decides to award them compensation, then the employer should have ready an indication of the level of compensation they feel is appropriate. The tribunal may wish to know if the employee was a member of a pension scheme, so the employer should bring along documents that detail the type of scheme (final salary or money purchase), the retirement age under the scheme and the amount of the employer's contribution.

Main hearing

While a tribunal will normally consist of three members, the chairman may sit alone in cases dealing with unlawful deduction from wages and breach of contract.

Many employers and employees opt to present their own cases. Some, on the other hand, choose to be represented by a lawyer, a trade union official or a member of an employers' organisation.

It is vital that both the employer and employee attend the hearing since the tribunal can still decide a case in the absence of one of the parties.

The parties and their witnesses will normally be obliged to offer their evidence on oath, and could be liable to a criminal charge of perjury if they lie.

Once somebody has offered their evidence, then the other party can cross-examine them. They will also be questioned by the tribunal members and the chairman. After all the witnesses have given their testimony, both parties sum up their case. Then, in private, the tribunal will assess the evidence and arrive at a decision.

Decisions

The average duration of a main hearing is one day. The tribunal will reach either a unanimous or a majority decision. This the tribunal will normally announce straight away and in person to both the parties. The decision will then be confirmed in writing.  In particularly complicated cases, however, the tribunal may choose to withhold their decision until the parties have been informed in writing.

As well as adjudicating on the merits of the case, a tribunal will usually consider the matter of remedy - be it reinstatement, re-engagement or financial compensation - at the same time. Occasionally, though, the two issues are dealt with separately. The tribunal, for example, might first choose to decide whether the application is successful or not before hearing evidence on the remedy.

If a tribunal decides in favour of the employee, it can insist upon their re-instatement, although compensation paid by the employer to the employee is a more likely outcome.

When considering re-instatement as an option in cases of unfair dismissal, the tribunal will weigh the wishes of the employee, whether it is practical for the employee to return to work and whether it would be fair for the employer to take the employee back in those instances where the employee was partly responsible for their dismissal.

Awards

The approach of a tribunal that has found in favour of the employee is to grant an award that compensates the employee rather than punishes the employer.

In the matter of unfair dismissal, for example, the level of the award will take into account two elements. First is the loss of job security. This will depend on the employee's age, the length of time they have been employed and their earnings. Second is the loss of earnings since the dismissal and the likely future loss of earnings, including pension payments.

Appeals

Any party who believes that the decision of the tribunal is incorrect can lodge an appeal. They must do this to the Employment Appeal Tribunal. The appeal has to be on a point, or points, of law and must be made within a specified time frame.

Costs

It is not expected for a tribunal to award costs, but it can do so if, in its view, one of the parties has behaved in a frivolous, disruptive or unreasonable manner.

Although parties cannot apply for legal aid at a tribunal, an employee can seek free legal advice under the legal advice and assistance scheme. Witnesses are entitled to travel expenses but not full-time officials of trades unions or representatives of employers' organisations or solicitors or barristers.