The Employment Act 2008 came into force on 6 April 2009, following the Gibbons Review, which looked at the whole question of employment dispute resolution.
The Gibbons Review said that, under the previous system, far too many disputes ended up in front of Employment Tribunals; that it took far too long for them to get there; that the procedure was too costly for employers (an estimated average of £9,000 per case defended); and that it was stressful and damaging to employees' future work prospects.
The 2008 Act therefore:
Yes. Early Conciliation (EC) is mandatory for all claims. Before employees can issue a claim at an Employment Tribunal, they must contact Acas and submit an EC form online. Acas will provide conciliation to attempt to reach a settlement between you and your employee.
If settlement is not reached, or either of you refuses to engage, Acas will issue an EC certificate so that the your employee can proceed with the employment tribunal claim.
The former employee will need to register their complaint at the Employment Tribunal on form ET1. Use of form ET1 is mandatory. The form requires a lot of information - such as name, address, grounds of complaint and whether the complainant wants reinstatement or compensation. A fee is also payable by the complainant at the same time they register their claim (or they can apply for remission, if applicable), with further charges due if the claim goes ahead to Tribunal.
Your employee can go straight to the Tribunal without going through your grievance procedure. However, if they do not go through your grievance procedure, and their failure to do so is unreasonable, they risk a reduction of up to 25% in any award made to them.
Assuming that your former employee's claim is not weeded out at this stage, you will be sent a copy of the ET1 form, and must respond on form ET3 within 28 days, setting out the case that you will be putting to the Tribunal. If you fail to respond, the Tribunal may issue a default judgment in favour of the complainant.
When you receive a copy of your employee's complaint, you will be contacted by Acas (the government-backed arbitration service), inviting you to take part in a conciliation process. The parties can resort to conciliation at any time up until the hearing.
If conciliation fails, you will be sent a date for the hearing, which may be as little as 14 days ahead. If you fail to turn up, for whatever reason, the Tribunal is likely to find against you.
Tribunal procedures are less formal than those in the courts, but you may want to call witnesses to back up your claims, and you may want to cross-examine witnesses for the other side. You can get a lawyer to present your case. Each side generally pays its own legal costs (although the Tribunal can award some costs against parties who have behaved unreasonably - see 7).
The Tribunal's decision is usually announced at the end of the case, or a few days later. Both sides are sent a written version, giving the reasons. If you do not like the decision you may be able to appeal to the Employment Appeals Tribunal.
It makes sense to settle out of court if you can do so on reasonable terms. But you should certainly consider fighting if:
It is mandatory for all cases to go through Early Conciliation with Acas, before they can proceed to a tribunal (see 2).
Take legal advice.
Yes. If you reach a settlement through Acas (see 1) you can go for a legally binding agreement (known as a COT3 settlement), under which neither side will be able to come back for a second bite of the cherry.
Alternatively, you can aim for a 'settlement agreement' (formerly known as a compromise agreement), under which the employee waives their statutory employment rights in return for an agreed settlement on which they have received independent legal advice (normally paid for by the employer). Acceptance of such a settlement would make it impossible for the employee to come back for another go.
Settlement agreements have to be very carefully drafted, as various legal decisions on the effectiveness or scope of particular settlement agreements have gone against employers in the past, based on the precise wording used.
Unfair and constructive dismissal claims must be made within three months (three months less at least one day, or the claim will be barred) of the effective date of termination of employment (although there is provision to extend the deadline in certain circumstances). Claims are being scrutinised much more rigorously, and it is unlikely that one that is out of time will be allowed to proceed.
But if you receive an ET1 form out of time in respect of your former employee, complete and return it, but clearly state as part of your defence that the claim is out of time. You should also ask for a preliminary hearing to determine the issue of its being out of time.
The Employment Tribunal has the discretion to extend time if the employee can show that it was not reasonably practicable to present the claim within the three-month period or, in some discrimination cases, if it is 'just and equitable' to do so.
There have been several Employment Appeals Tribunal (EAT) findings which give employees more leeway.
Ask for a pre-hearing review. If your employee's case is as weak as you believe it to be, they will be advised that they has very little chance of winning. They may be asked for a sizeable deposit (the maximum deposit is now £1,000), and they may also be warned that since they have no reasonable chance of success, they risk having substantial legal costs awarded against them.
An upfront fee is also payable by the complainant at the same time they register their claim (or they can apply for remission, if applicable), with further charges due if the claim goes ahead to Tribunal. These are designed to discourage spurious claims.
Although in most cases going to an Employment Tribunal each party pays its own costs, where one party pursues a case which is misconceived or unreasonable, the Tribunal now has powers to award costs of up to £20,000 to the other side (see 1).
Probably, but take legal advice. If the Tribunal accepts that you had good reasons, it may reduce the size of the award against you. But you need to know whether your definition of a good reason is likely to coincide with that of the Tribunal, before you can make a decision on whether to fight or not.
Your employee is not obliged to raise concerns under your grievance procedure before they can bring such a claim but, if they unreasonably fail to do so, they risk a reduction of up to 25% in any award in their favour at a subsequent Employment Tribunal hearing. From 6 May 2014 it will be mandatory for all cases to go through Early Conciliation with Acas, before they can proceed to a tribunal (see 2).
They might. However, this could be one of those occasions when it will pay you to fight the claim (see 8), because even though you are technically in the wrong, the mitigating circumstances are so strong that the award, if any, will be negligible. It really depends on which procedures you failed to follow, and how drunk your employee was.
If you jumped to conclusions without much in the way of evidence, and sacked your employee on the spot without giving them a chance to put their case, you will be on shaky ground. You should follow a fair and reasonable disciplinary procedure before sacking people, even if the offence counts as gross misconduct and merits instant dismissal. If you unreasonably fail to follow the relevant Acas Code of Practice you risk an increase of up to 25% in any award made against you in subsequent Employment Tribunal proceedings.
But if you have half a dozen witnesses prepared to swear that your employee was drunk to the point of being dangerous, and you sent them home to sleep it off, gave them details of the offence in writing once they were sober enough to take them in, held a disciplinary hearing two or three days later, subsequently advised them of their rights of appeal, and merely infringed some minor internal procedures in dismissing them, you will be in a much stronger position. Provided that you have acted fairly and reasonably, the mere fact that you have not followed the strict letter of your own procedures will not necessarily invalidate your case.
There is nothing to prevent you from making such a request, but experience suggests that the Tribunal is unlikely to grant it. However, insufficient notice could be accepted as a valid reason. Time begins to run from your receipt of the ET1, not their issue of it. So if you can prove you received it late, your chances of an extension would be good.
Yes. You will need to provide reasons and also alternative dates for listings for the forthcoming few months.
Anything that will help you to prove your case. This could be employment contracts, the staff handbook (if any), details of your discipline and grievance procedures, and any other correspondence or documents which are relevant to the issues. These might include witness statements, but you will probably also need to ask witnesses to attend. Tribunal members will want to hear your witnesses for themselves, and may want to question them.
It depends on what it is. Both parties are entitled to ask for as much information as they feel to be necessary, and if one party fails to comply, the other side can write to the Tribunal and ask them to get it. If you feel that the information the other side is requesting is not relevant, write to the Tribunal and say so.
Yes, they are held in open court. As to whether they will be reported: that depends partly on how newsworthy they are, and partly on the other stories available on the day.
Yes, you will be able to call witnesses, and providing they are relevant, it will help your case. You can obtain witness orders to compel witnesses to come forward, if you need to do so.
Yes, but it is up to the Tribunal to decide whether that anonymity can be preserved. The Tribunal must base its decision on the question of whether anonymity is necessary for a fair result, which will largely depend on what the evidence is, and in particular, how many other witnesses there are. Take legal advice.
It is always best to call witnesses to give evidence in person as more weight is attached to evidence where the witness can be cross-examined. You can submit witness statements without asking the witnesses to give evidence but it will not carry as much weight as calling them.
Probably yes. Encourage your witnesses to be factual and polite. If you are cross-examined, follow the same procedure. Do not lose your temper - it will not help your case.
Costs can vary considerably, depending on the type of case and how the individual pursues it, but in broad terms the bill for a one-day Tribunal hearing would probably be upwards of £4,000 plus VAT from start to finish. Tribunals do not usually award costs against a party, although they are now being encouraged to do so if there has been unreasonable conduct by that party.
The Tribunal might not make an award at all: it might simply demand that the employee be reinstated (to his or her old job) or re-engaged (in another of similar standing). However, if an award is made instead, it will currently consist of two elements:
Employees below the age of 22 get half a week’s pay for each year’s service they have completed; those between the ages of 22 and 40 get a week’s pay for each year of completed service; and those aged 41 or over get a week and a half. In each case, the week’s pay is capped at £464, and there is a 20 week limit.
The compensatory award may be reduced if the Tribunal considers the employee to have been in part responsible for their own misfortunes. Where employees have been sacked for trade union activity, or for acting in health and safety matters, or otherwise as an employee representative, there is a minimum basic award of £5,676; and where employees have been sacked for whistle-blowing, or for pointing out health and safety flaws, there is no maximum on compensatory awards. There is also no upper limit on awards in discrimination cases.
An unreasonable failure to comply with the Acas Code of Practice means an Employment Tribunal can increase any award against you by up to 25% (or reduce it by up to 25% if the failure is by the employee). This is subject to the statutory cap of £76,574 - and a minimum basic award of four weeks’ pay, except in discrimination cases, where there is no statutory cap.
Yes, you can appeal. You have 42 days from the date the notification of the decision is sent to you. It is the date of dispatch of the notice, not receipt, that is important. The appeal is limited to points of law. Take legal advice before lodging any appeal.
This is unlikely, because the Tribunal will take into account whether it is practicable for the employee to return to work for the employer - and one of the factors considered will be whether relations at the workplace have been too severely damaged.
If it does happen, however, and you fail to comply with an order for reinstatement or re-engagement, it is open to the employee to complain again to the Tribunal, which will then make an order for compensation. This could include two elements: the compensation that would have been awarded in the normal manner, plus an additional award for the fact that you refused to comply with the original order - unless you can persuade the Tribunal that it was not practicable for you to do so.