A guide to tribunals | Top eight steps for success)
Employment tribunals and employment appeal tribunals are places you hope to never end up as an employer, and for most what actually happens there is obscure.
The truth is far more mundane – “99% boredom, 1% fear” as one lawyer puts it – but it’s important to understand what they are, what they do, and how to approach one should you ever find yourself having to defend a claim in one.
So what are tribunals?
Employment tribunals are tribunal public bodies in England & Wales and Scotland which have statutory jurisdiction to hear many kinds of disputes between employers and employees.
The most common disputes are concerned with:
- Unfair dismissal
- Redundancy payments & discrimination
Employment tribunals are constituted and operate according to statutory rules known as the Employment Tribunals Rules of Procedure, which set out the tribunals’ main objectives and procedures, and matters such as time limits for making a claim, and dealing with requests for reviews.
Tribunals are intended to be informal.
There are separate employment tribunals for Scotland, and England & Wales. A claim may not be presented in Scotland for proceedings in England & Wales, and vice versa, but it is possible to transfer proceedings between the two jurisdictions in certain circumstances.
Scottish Employment Tribunal practice follows Scots civil law, which differs markedly from the procedure used in England &Wales.
The Employment Tribunal procedures
There is a three-step process for handling a claim made against you at the tribunal:
- Early Conciliation
- The Claimant submits the ET1 form
- Receipt of case management order or date set for a Preliminary Hearing – Case Management
It’s also worth noting who’s who, and the hygiene factors behind bringing a claim.
The Claimant (employee)
A party making a claim has to present a valid Claim Form (ET1) to an Employment Tribunal office within the appropriate time limit. This can be presented electronically.
A Claimant may represent themselves at tribunal, or can be represented by either a legal representative, a trade union or a relative/friend.
A party defending a claim has to present a Response Form (ET3), within 28 days of being sent the Claim Form by the Employment Tribunal. Note that if a party fails to present a Response Form the claim may proceed undefended.
Breach of Contract
A claim can only be brought once employment has ended, and a claim can only be brought if it arises or is outstanding on the termination of employment.
The confidential use of ACAS conciliation is the first step when the employee submits a tribunal claim, and parties have an ACAS officer assigned to most claims to assist the parties in reaching a binding agreement to end the claim before tribunal procedures commence.
Time limits for an Employment Tribunal
The rules concerning time limits are complex, but the typical time limit for a claimant making a claim is three months from the date of the act complained of, such as being unfairly dismissed or not being paid wages.
The Employment Tribunal may grant an extension of time to bring a complaint if certain conditions are met. The test that applies depends upon the kind of complaint the claim is, falling within three broad categories:
- A complaint of unfair dismissal
- breach of contract
- unlawful deduction from wages and other similar claims (can only be considered if it was not reasonably practicable for the complaint to have been presented before, and if the complaint is presented within a reasonable time thereafter)
These are a matter of evidence for the person bringing the claim.
In discrimination complaints the time limit is less strict, and a claim may be heard if it is late, if it is considered to be just and equitable to do so.
Time limits of six months apply for claims for Equal Pay (taken from the end of employment with no extensions at all), and for a redundancy payment (with a consideration as to whether or not it was reasonably practicable to present the claim in time).
The Hearing itself – the different types of Employment Tribunal Hearings
The Employment Tribunal’s Rules of Procedure allow for several types of hearing:
- A Case Management Discussion – this is used to clarify issues and determine the Directions for a case
- A Pre-Hearing Review – to determine the entitlement of a party to bring or defend proceedings (or an entitlement to Interim Relief), a form of preliminary finding in certain types of claim involving Trade Union activities or making a protected disclosure (whistleblowing), which may order a former employer to continue to pay a dismissed employee until a full hearing
- A Full Hearing – which may determine liability and/or remedy
- A Review Hearing – to re-consider a judgement
- Witness statements
If the case proceeds to a full hearing it will be heard by a tribunal of three people, comprising a legally qualified Employment Judge and two lay members. The lay members use their employment experience in judging the facts.
During the hearing the Employment Judge is under a duty to:
- Ensure that the hearing is conducted fairly
- Take into account both sides’ submissions on the law and facts
Witnesses are called for both sides with witness statements being supplied in advance, the evidence of each witness is important and can make or break a case for the client. Each witness needs to be sure of their evidence and be well prepared.
The parties tribunal bundle includes all the evidential documents required and is agreed between the parties, and each party including the tribunal have copies of the bundle.
Defending an Employment Tribunal claim
There’s a lot of art and science behind successfully defending an Employment Tribunal claim (we have a 98 per cent success rate), but here’s a quick top eight steps you need to do to give yourself the best possible chance of success:
- Ensure managers are fully trained
- Ensure different, more senior people are used at each stage in the process
- Deal with issues in a reasonable time period
- Take advice at the relevant time
- Ensure you have a reliable paper trail
- Act consistently in every case
- A thorough investigation is the starting point of any process and determines the next step
- It is important to have reliable witnesses
Note that employees with less than two years’ service can only submit a tribunal claim for certain issues, including trade union activities, pregnancy/maternity rights, discrimination issues and whistleblowing.
Remedy at tribunal
In the event of the employee winning their tribunal claim, the tribunal will hold a remedy hearing either on the same day or a future date.
The employee will give evidence on their work-seeking activities in the period between the incident and the tribunal, so it’s important to collect evidence to act as a counterpoint at this stage.
Collate information on similar work in the employee’s area to show how much work was/is available which may assist the remedy hearing.
Appeals and the Employment Appeal Tribunal
Where a party believes the tribunal has misapplied the law or acted perversely, the review process (used to ask a tribunal to review its own judgment, decision, motion, or to correct a clerical error) is inappropriate and the party must appeal to the Employment Appeal Tribunal.
For example the right of an Employment Judge to strike-out all or part of a claim while sitting alone in a Case Management Discussion would be outside the power of the Employment Judge, and therefore amount to an error of law that the Employment Appeal Tribunal could reverse.
The tribunal has jurisdiction to consider appeals on only questions of law.
Appeals on questions of fact are only allowed in exceptional circumstances, on the ground that a tribunal decision was so perverse or defective that no reasonable tribunal could have arrived at that decision.
A valid Notice of Appeal must be lodged at the relevant office of the Employment Appeal Tribunal (London or Edinburgh) by 4pm on the 42nd day after the Employment Tribunal issued its written reasons for the Judgment.
The time limit is strictly enforced and appeals are often rejected due to either:
- The time limit being missed or an incomplete Notice of Appeal being lodged (for example, if one page of the Judgment is missing, the Notice of Appeal is invalid)
- An interim Tribunal order must be appealed within 14 days, and reasons must be provided (which may need to be asked for at the original hearing)
In summary, tribunals are informal, yes, but they follow a formal process and it’s essential to follow that process correctly to give yourself the best possible chance of success.