Although some employees and employers can now choose to follow an alternative dispute resolution procedure, most employee complaints are still heard at an employment tribunal. You need to take tribunals seriously. If you have well-thought-out procedures, and follow them, you can prepare good evidence, making it easy to defend your actions.
The interpretation of employment law is moving in favour of the employee, and awards are increasing, so it is important to understand the system and the way tribunals operate.
This briefing covers:
- The tribunal process, from start to finish.
- How to defend a case.
- How to prevent disputes arising.
1 The tribunal process
Employment tribunal hearings usually take place before a legally qualified employment judge and two lay members, one nominated by an employers’ organisation and the other from a union or employees’ body.
1.1 The employment tribunal process is impartial, but in an unfair dismissal claim it does generally start by assuming that there is a case for the employer to answer.
- Tribunals try to be guided by what is reasonable. They will take into account prevailing standards and practices in your industry and recognise that special difficulties can arise in smaller firms.
- Awards made by the tribunal are aimed at compensating the employee, not punishing the employer.
1.2 The starting point for tribunal decisions is statute law.
1.3 Before claimants can issue a claim, they must contact Acas and submit an Early Conciliation (EC) form online (www.acas.org.uk) or via post. Acas will provide conciliation to attempt to reach settlement between the two parties.
- Early Conciliation from Acas is available from 6 April 2014 and is mandatory for all claims from 6 May 2014.
- If settlement is not reached, or either party refuses to engage, Acas will issue an EC certificate so that the claimant can proceed with the employment tribunal claim.
1.4 Where the EC fails, the claimant can submit a form (ET1) and the relevant fee online. In it they explain the basis of their complaint and state whether statutory workplace dispute resolution procedures have been followed.
- You will be sent a copy and must respond (on form ET3) within 28 days of the date the form was sent out, or risk losing your right to contest the case.
- What you say in your response is the case you will be putting to the tribunal, so give a considered reply.
- If you have a good reason, you can ask for an extension beyond the 28-day period.
1.5 You will be sent a date for the hearing.
- Any request for a postponement should ideally be made immediately.
- If a date is just impossible for you, tell the tribunal, giving good reasons. (If you will be abroad, send a copy of your air ticket.)
- When you reply, tell the tribunal if you think the case is likely to be complicated.
Procedures can be the key to success, as long as you stick to them. The law requires you to comply with minimum workplace dispute resolution standards.
A company handbook, distributed to everyone, lets employees know where they, and you, stand.
Apart from careful recruitment, training is the best form of dispute prevention.
Performance appraisals can help you nip problems in the bud.
Keep proper personnel records, covering absences, lateness, performance problems, and all warnings, spoken or written.
To prevent problems, it helps to know what the most common allegations are.
- The most common are unfair dismissal claims, often based on allegations that there was no valid reason for dismissal, that fair and transparent procedures were not followed, or that ‘natural justice’ was not applied.
- Cases involving redundancy usually revolve around unfair selection or failure to consult with employees.
- Discrimination — on the basis of disability, sex, age, sexual orientation, race, pregnancy or maternity, gender reassignment, marital or civil partnership status, religion or belief — generates growing numbers of claims.
2 Before the hearing
When an application is made against you, it is the preparation you do before the hearing that is most likely to determine the outcome.
2.1 Check first to see whether the application is technically flawed.
- For example, in unfair dismissal cases, the claimant must have two years’ service (one year if employment commenced before 6 April 2012) except where discrimination or inadmissable reasons for dismissal are involved.
- The claim must be made within three months of the date of termination — except where the claimant thinks the matter is being dealt with internally, or in rare cases, at the tribunal’s discretion.
If the claim is invalid on technical grounds, write to the tribunal. Ask for a pre-hearing review to get the claim thrown out.
2.2 Investigate the issue again, to make sure of your ground before getting into a fight.
- The manager responsible may have been misleading you.
2.3 Resolve the claim amicably, or settle (see 6), if it arose from a genuine misunderstanding.
- For example, explain the reasons why an expected promotion was not given.
2.4 If you think the claim is almost certain to fail, request a pre-hearing review.
- The tribunal will look at relevant documents.
2.5 If the hearing goes ahead, be clear about the costs and benefits of fighting the case.
- Even a fairly straightforward case can drag on for months.
- The cost in disruption and management time can be considerable. A case can also damage the credibility of your business.
- Some cases are worth defending to signal your resolve to other employees.
2.6 Prepare a realistic case strategy, based on your strengths.
2.7 Prepare evidence to show the background to the case and to prove what happened.
- General evidence provides the background — contracts of employment, employee handbooks and your HR policy statements.
- Specific evidence relates to the case itself.
2.8 As part of your preparation for the hearing, you can seek further particulars of the claim from the other side.
For example, are there any further allegations that will be made against you?
- If you need more information, ask for it.
If it is not handed over, write to the tribunal to make your request, compelling the claimant to give you the information.
- You must respond reasonably to requests for information from the other side.
If you are on the receiving end of a request that you think is silly or goes too far, ask the tribunal to verify it.
2.9 You will usually need to exchange documents in advance of the hearing.
- You must prepare witness statements beforehand (see 3) and agree a ‘bundle’ of relevant papers with the other side.
- Witness statements and the bundle (decent, numbered copies) must be handed over. You will need at least six copies, one each for the three members of the tribunal, both parties and the witness.
Your legal costs
Compared with going to court, the legal costs of going to tribunal are low. Depending on the case and your experience in these matters, you may not even require a solicitor.
Each side generally pays its own legal costs, regardless of who wins the case.
- A party warned at a pre-hearing review that the claim had little prospect of success might have to contribute to the other side’s legal costs.
- If either party (or its representatives) behaves abusively, disruptively or unreasonably during the case, it can be ordered to pay costs of up to £10,000.
A straightforward unfair dismissal claim might cost £5,000 to £7,000 to defend.
A discrimination case, which by its nature is complex and uncertain, could cost £25,000.
3 The hearing
Employment tribunal hearings are less formal than the courts. The running order is not necessarily fixed and belligerent questioning will be stopped. But the hearing will still be purposeful, with an emphasis on clarity, evidence and the merits of the case.
3.1 The hearing is public and open to the press.
- The employer generally goes first in an unfair dismissal case and the claimant goes first in a discrimination case.
- If you do not turn up, the case is likely to go against you. If ill, send a medical certificate and ask for an adjournment.
3.2 Tribunals have their own rules, quite different from those in the courts.
- Evidence is assessed on the balance of probabilities. You do not have to prove anything ‘beyond reasonable doubt’.
3.3 When it comes to the main evidence in the hearing, tribunals prefer witnesses, who can be questioned under oath, to written statements on their own.
The tribunal will itself generally question witnesses, in an informal manner.
3.4 The two sides usually pay their own costs
- If the claimant belongs to a trade union, it may advise and represent him or her.
4 The decision
4.1 The decision will usually be announced at the end of the case or a few days later. In some complex cases, however, the delay can stretch into weeks or even months.
4.2 Both sides are sent a written decision, with the reasons for it in summary or full form.
- Ask for full reasons if an appeal is possible.
4.3 If you do not like the tribunal’s decision, you can ask it to review the case. This must be done within 14 days of the decision.
4.4 You may want to appeal to an Employment Appeal Tribunal.
- Appeals must be made within six weeks and be based on a point of law. Few succeed.
5.1 For unfair dismissal, the amount is made up of two elements.
In rare cases, the tribunal may insist that an employee is reinstated.
5.2 Breach of contract awards in tribunals are capped at £25,000.
5.3 Discrimination case awards are unlimited.
- As well as loss of earnings, claimants can claim damages for injury to feelings.
6 Agreed settlements
Reaching a settlement, before disagreements reach an employment tribunal, may well be in your best interests.
6.1 A settlement may include a cash sum and other negotiable elements.
- The settlement usually involves money and a reference, with agreed wording, if the employee has been dismissed. This reference is a key bargaining counter.
No-one can usually oblige you to give a reference that does anything more than confirm the dates of employment and the employee may need more than that.
- A confidentiality clause may be a valuable part of the deal — something you cannot get from a tribunal, even by winning.
Realistically, though, details of the settlement may still leak out. Bear in mind the impact of this on other employees.
6.2 There are two main routes to reaching a settlement.
7 Getting help
7.1 Acas, besides conciliating in specific cases, provides publications and training courses.
7.2 You may need legal advice, from either a solicitor or a specialist consultant.