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Employment Tribunals - overview
The procedure for bringing and responding to claims in the Employment Tribunal is much less complex than the procedure in the civil courts. However, as the number of claims and the sums recoverable in the tribunal have risen, the rules of procedure have also become more detailed. The Employment Tribunals (Constitution and Rules) etc Regulations 2004 are the most recent rules of procedure and set out most of the relevant provisions.
However, details such as time limits, the principles on which time will be extended and provisions about questionnaires are also contained in the relevant acts.
Bringing and defending a claim
The formalities required for bringing a claim are that it should be set out on the form ET1 and should contain certain information, including names and addresses of the claimant and respondent, and details of the claim. Claimants also have to make sure that they bring their claims within the proper time limit and in certain cases that they have complied with the statutory grievance procedures.
If any of these things are not done, the tribunal will reject the claim and it will have to be re-submitted, which may cause the claimant to miss the primary time limit. Time limits are usually three months from the date of the act complained of, although there are various different rules under different jurisdictions for when this moment is identified. Tribunals will consider applications to extend time, sometimes on the basis that it was not reasonably practicable to present the claim in time (a stringent test) or on the basis that it would be just and equitable to do so (a less exacting test).
Respondents also have to comply with similar formalities of submitting the correct form within a proper time limit and including the required information. Failure to submit the response within the time limit without a good explanation could mean that default judgment is entered against the respondent who is then, usually, debarred from appearing in the rest of the proceedings.
Once the claims or responses have been presented to the tribunal, the parties may add to or change them, although the circumstances under which this can be done are limited. If either party wishes to add more detail to the broad facts alleged, they may usually do so simply by providing further particulars. A tribunal may occasionally order this to be done of its own accord.
In other circumstances, the party will have to make an application to amend and the tribunal will decide whether or not to allow the amendment on the basis of the 'balance of hardship and injustice'. The most difficult amendment to obtain is to include a new claim based on new facts. In this case, the relevant time limit will apply and, if it has expired, the tribunal will consider whether or not time should be extended under the usual principles.
For further details, see Employment tribunal time limits, Submission of a claim and Time limits checklist.
The tribunal will play an active part in the process of preparing for the main hearing. Even in simple cases, it will usually set dates for disclosure, for the exchange of witness statements and schedules of loss and for setting a date and a time estimate for the hearing. In complex cases, particularly discrimination and equal pay, the tribunal will also manage the clarification of issues, disclosure in stages and the instruction and questioning of expert witnesses. Most of this type of case management order will be given at case management discussions, which are interim hearings held in private by an Employment Judge sitting alone.
Tribunals also have the power to determine more substantial matters ahead of the main hearing. Any decision by the tribunal which affects the rights of the parties must be determined at a pre-hearing review, which is held in public. If any matters of fact are to be determined, it will usually be appropriate for a full tribunal to sit. Any order to strike out or to force a party to amend its claim or response, to make a restricted reporting order or to order a party to pay a deposit must be heard at a pre-hearing review rather than a case management conference. Examples of the sort of question that might be determined at a pre-hearing review, if they are sufficiently separate from the subject matter of the main claim, are:
whether the claim is brought within time and, if not, whether time should be extended
whether the claimant was an employee
whether the claimant is disabled for the purposes of the Disability Discrimination Act
whether there was a TUPE transfer applying to the claimant
The Tribunal also has powers to impose sanctions on parties that do not comply with orders. 'Unless orders' may be made, which strike out a claim or response if the claimant or respondent does not comply with a requirement before a certain deadline. Costs orders may be made if the other side has been put to extra expense because of the other side's default. If sufficient prejudice has been suffered by the other side, the employment tribunal may strike out either the claim or the defence.
For more information, see Pre-hearing reviews and Case management discussions.
The vast majority of employment tribunal claims never reach a full hearing, and those that do often do not proceed to judgment, typically because they are either withdrawn by the claimant following a private settlement between the parties or settled following conciliation by Acas.
Acas has a discretion as to whether or not to seek to promote a settlement in cases which have not yet been presented to a tribunal. An Acas officer does not have to justify the reasons for his decision. Acas has issued a guidance note setting out how it intends to exercise its discretionary power. In contrast, Acas has a duty to conciliate in employment tribunal cases from the moment that proceedings are commenced, right up until the tribunal delivers judgment if a conciliation officer is requested to do so by the person by whom and the person against whom the proceedings are brought, or in the absence of any such request, the conciliation officer nonetheless considers that conciliation would have a reasonable prospect of success.
The parties may reach a binding agreement to settle a tribunal claim for breach of contract. However, specific statutory provisions (often referred to as 'contracting-out provisions') make agreements not to pursue other tribunal claims void and unenforceable, save in specified circumstances such as agreements reached following conciliation and agreements contained in a relevant compromise agreement.
For further details, see Settlement, withdrawal and consent orders in the employment tribunal.
Preparation for the main hearing
The parties are generally given at least 14 days' notice of the main hearing of a claim. In many cases, the tribunal will give directions to the parties as to the preparatory steps required before the main hearing, including directions as to preparation of a bundle of documents to be used at the main hearing and preparation and exchange of witness statements.
Even if the tribunal has not given directions to this effect, the parties should generally try to agree which relevant documents should be included in the bundle for the main hearing, and should agree to prepare and exchange witness statements for each of their witnesses. Six copies of the bundle of documents, and six copies of each witness statement are required for the hearing, unless the case is to be heard by an Employment Judge alone, in which case four of each is adequate.
It is the standard practice of the employment tribunals, certainly in straightforward cases, to list cases so that issues relating to liability and remedy may be dealt with at the same hearing. Therefore, unless there has been a specific direction from the tribunal that this is not the case, the parties should prepare for the main hearing on the basis that it will deal with all live issues.
For more information, see Preparation for employment tribunal main hearing.
Procedure at the main hearing
The main hearing of a tribunal claim usually takes place before a tribunal consisting of three members, ie an Employment Judge and two lay members, although certain specified types of case are usually heard by an Employment Judge alone, including (from 6 April 2012) unfair dismissal claims. Most hearings take place in public.
A party may represent himself at the hearing or choose someone else to represent him. Tribunal proceedings are less formal than court cases, with no strict rules of evidence, but there is still some element of formality.
The tribunal has a wide discretion to control the way in which a case is heard. It will usually try to clarify the issues at the start of the hearing. Opening speeches are not usually permitted. Usually, the party who has at least the initial burden of proof will call evidence first. Witnesses must give evidence on oath or affirmation. A witness's statement will stand as his evidence in chief (ie he will not be required to give evidence in chief orally) unless the tribunal or Employment Judge orders otherwise (this particular rule does not apply if the claim was presented to the employment tribunal office on or before 5 April 2012). They are then cross-examined by the other party and re-examined by the party who called them. The tribunal may ask questions at any time and may effectively call witnesses of its own.
Once the evidence of all parties has been given, the parties sum up their cases in closing submissions. It is usual for the party who gave evidence first to make closing submissions last.
The tribunal may give judgment at the end of the hearing or may reserve judgment to be given in writing. The tribunal must give reasons for any judgment it gives.
For further details, see Procedure at employment tribunal main hearing.
The employment tribunal will not award costs in favour of the successful party as a matter of course. Costs awards are very much the exception rather than the rule. The employment tribunal does have power to make:
a costs order: an order that one party pay:
a sum in respect of fees, charges, disbursements or expenses incurred by another party who was legally represented at the hearing of the case or at the time it concluded, where there was no hearing
a payment to a witness in respect of some or all of the expenses that witness incurs for the purposes of, or in connection with, that witness’s attendance at the tribunal
a preparation time order: an order than one party pay a sum, to another party who was not legally represented at the hearing of the case or at the time it concluded where there was no hearing, in respect of that party's time preparing for the hearing
a wasted costs order: an order that a party's representative pay a sum in respect of costs incurred as a result of his improper, unreasonable or negligent act or omission
For further details, see Costs in the employment tribunal.
Interest is generally awarded up to the date of any monetary award only in discrimination and equal pay cases. Interest accrues on any type of monetary award once it has remained unpaid for 42 days.
For more information, see Interest in the employment tribunal.
Recoupment of benefits
Where a tribunal makes an award of compensation for unfair dismissal or one of a number of other awards, and the claimant has received any jobseeker's allowance or income support during the period before the conclusion of the tribunal proceedings, the award is generally subject to recoupment. In effect, recoupment involves the respondent deducting from any monetary award any sum they have received in respect of relevant benefits up to the date of the tribunal award and then paying that sum back to the Government rather than to the claimant.
For more information, see Recouping benefits.
Review of tribunal decisions
Where a party is dissatisfied with a judgment or other decision of an employment tribunal it may, in certain circumstances, appeal against that decision. In certain specified circumstances, a dissatisfied party may apply to the employment tribunal that made the decision, asking it to review that decision. Any application for a review must specify the grounds on which the review is sought. An application for review may be refused by the tribunal or, if not refused, the tribunal may vary, revoke or confirm the original decision.
For further details, see Review of employment tribunal decisions.
Enforcement of awards
The employment tribunal itself currently has no mechanism for enforcing its awards, whether monetary or non-monetary. In certain circumstances, non-compliance with a non-monetary award may lead to a tribunal ordering an increase in the monetary award, but there is no mechanism for the tribunal to enforce it. Any monetary award made by an employment tribunal, and any COT3 award, may be enforced, once it has been duly entered onto the tribunal register, via the County Court in the same way as a County Court order.
For more information, see Enforcement of employment tribunal awards.
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