The powers of employment tribunals are great – and better read about than experienced, says Bob Patchett.
Tribunals were established in an era of workplace disharmony when a need was felt for a system whereby workplace disputes that could not be settled domestically could be resolved speedily and informally within the legal system.
Although tribunals are proper courts, the intention was that they should operate as informally as possible so that they were easily accessible by employees and employers without the need for legal representation. Accordingly, legal dress was abandoned and the rules of procedure slackened. Although court officers do dress less formally, and claimants and defendants often represent themselves or have trade union or employer association officials lead on their behalf, much of the tribunals’ business is led by lawyers. Even so, business for the tribunals has boomed with a result that complainants may have a long wait before their issue is dealt with. As a result, steps are being taken to reduce the pressure on the system by encouraging out-of-court settlements.
If you find yourself heading towards an employment tribunal for the first time, you should first acquaint yourself with the way that they work by reading the literature available from tribunal offices, perhaps attend a training course, and certainly by attending a tribunal hearing. These hearings are open to the public; the local tribunal office can let you know when a case similar to your own is likely to be heard. A full tribunal consists of three members: the chairperson who is a lawyer, a lay member nominated by the trade union movement, and one with experience as an employer. However, increasingly more straightforward cases are being heard with just a judge.
The breadth of jurisdiction of tribunals is wide and includes issues such as appeals against improvement and prohibition orders issued by officers of the Health and Safety Executive (HSE). However, the most common complaints presented are about unfair dismissal, workplace discrimination and redundancy payments. Recent legislation has introduced two features aimed at reducing the pressure on the employment tribunal system. First, employees wishing to present a claim to the employment tribunal are required to pay a fee to have their complaint assessed and a further fee if it is taken to a full tribunal hearing. The cost for presenting a claim of unfair dismissal, for example, is £250 and £950 respectively, though people on certain benefits are not required to pay. If the claimant wins his or her case, the tribunal has the power, if it so chooses, to order the defending employer to reimburse the employee’s fees. UNISON has challenged this legislation in law as clearly and grossly unjust since the number of claims now being made has plummeted. The union has lost its case in the High Court but has been given leave to appeal; this fee structure may, therefore, be changed.
The second brake on the rush to employment tribunals harks back to the original concepts, ie that the parties to a dispute should try to resolve the issue by conciliation or arbitration using a third party, thus avoiding the expense and inconvenience of going to law. An employee who wishes to follow the tribunal trail must first submit his or her claim to Acas who will then explore the possibility of resolving the matter by conciliation, that is to say by getting the two parties to agree a settlement. If this is not successful, the claim is then forwarded to the tribunal with clear evidence that conciliation has been attempted. Without this evidence the claim will be rejected. The tribunal considers whether the evidence indicates that there is a case to try and then exercises its power to ask for more information from the parties, to hold a preliminary hearing to investigate certain issues (such as whether the claimant was indeed an employee), to register the claim for a full tribunal hearing, or to grant interim relief because of the urgency of a matter (such as whistleblowing or trade union membership).
The claimant has to submit his or her complaint on a form, setting out the main thrust of the complaint with appropriate evidence. A copy of this form is then sent to the employer who is required to respond by setting out the main heads of defence, again with evidence. If these forms are not submitted on time, and indeed if either party fails to turn up to an arranged hearing, the tribunal will close the case. Moreover, in order to expedite business, tribunals may choose to assume that all parties should attend having read all the written evidence such that the purpose of the hearing is to clarify matters and emphasise the main points. Certainly the employment tribunal is not a place for fine oratory. If either party raises a new argument or produces new evidence, the tribunal has the power to disregard it. Therefore, if you have to defend a case in the employment tribunal, you must collate the relevant papers such as employment contracts, rule books, notes of meetings and contemporaneous witness notes. Then assess your case, decide the structure of your defence, and get everything back to the tribunal office in good time. You may well decide to take legal or other professional advice and, perhaps, engage a lawyer or other expert to take your case. You should also consider whether it might save you a great deal of cost and bother by making a generous out-of-court settlement using Acas or a solicitor. If Acas brings the parties to a settlement, it will be recorded on a COT3 form. This service is free, and it terminates the claim. Alternatively a solicitor may, at some cost, draw up the settlement in a legally binding settlement agreement.
Having heard the evidence, the tribunal will decide what it believes are the facts of the case and then apply the law. In cases such as unfair dismissal, the tribunal has power to order that the successful employee be re-engaged or reinstated in his or her old job, but more usually makes monetary awards to reflect both a punitive element and compensation. At present, if the employer fails to pay up, the employee has to pursue the matter as a debt in the civil court. A Bill currently in Parliament proposes to refer this back to the employment tribunal who will then have power to issue a warning and, if that is ignored, fine the employer. Tribunals also have power, when judging that an individual has been unlawfully discriminated against, to make a recommendation covering the whole of the employer’s workforce. However, there are indications that this may be repealed.
Decisions of the employment tribunal may be appealed, but only on points of law. Their decision of fact may be appealed only if a higher court considers it perverse.
The first court of appeal is the Employment Appeal Tribunal, but its decisions may be appealed right up to the European Court of Justice, and indeed some cases may be referred directly to the ECJ.
The law is expensive and tribunal powers are great. So, think “out-of-court settlements” – and get some sleep.