Our annual update events were held in Manchester and London at the start of June and once again were a great success. Thank you to all those who attended.
Unless sitting alone, such as with unfair dismissal claims, an employment judge (a qualified lawyer) hears cases alongside two lay members, one with managerial or business experience and one with experience of representing employees.
Ordinarily, a prospective claimant must contact Acas to allow it to explore a settlement of the dispute. This can last for up to one month, with a possible extension of a further two weeks. If settlement is not reached, Acas will issue a certificate and the claimant can then complete and lodge a claim form (Form ET1) in the employment tribunal within a set timescale. Once received, the employer has 28 days to respond (Form ET3) to the claim. An Acas conciliation officer is assigned to the case and will promote a settlement. If a settlement is reached, the claim will be finalised by the parties agreeing settlement terms within a COT3 agreement.
Initially, an employment judge will review the claim (ET1) and response (ET3) and have the power to strike out either if it has no reasonable prospect of success.
An employment judge will call a preliminary hearing to consider case management issues, any preliminary/jurisdictional points and/or the merits of the case. The tribunal may rule that a claim is inadmissible, strike it out, or require the claimant to pay a deposit to continue if the prospects of success are not reasonable.
To get the case ready for a full hearing, the tribunal will usually direct either or both parties to take certain steps. These can be to provide further particulars of the case, exchange relevant documents (or copies) with the other party, set out the financial relief claimed, and/or exchange written witness statements. Failure to comply with an order can result in the case being struck out and/or the party being fined.
At the final hearing, the party under the burden of proof starts by giving evidence through relevant witnesses and supporting documentation, with the pre-exchanged statements being 'taken as read' (so that it does not actually have to be read out on the day). Each witness is open to cross-examination by the other side and to questioning by the tribunal. The same process applies when the other party in turn presents its case. On completion of the evidence, each party makes a closing statement to the tribunal (the party under the burden of proof goes second).
The employment tribunal may give a decision on the day or later (a reserved decision). It may be unanimous or by a majority. It is always provided in writing, in either full/extended form (which is mandatory in discrimination cases) or in brief/summary form.
The remedy or award for a successful claimant can be considered at the conclusion of the final hearing (if the decision is given then) or at a separately scheduled hearing. If an award of compensation is not paid within 14 days of the tribunal’s decision, the award attracts interest at the rate of 8% per annum.
Normally, win or lose, each party bears their own costs of bringing or defending a claim. However, the employment tribunal has the discretion and in a few specified circumstances, the obligation to make a costs order (in favour of legally represented parties) or a preparation time order (in favour of parties who are not so represented).
Where it considers there have been ‘aggravating features’ underlying a finding against an employer (such as deliberation, malice, the presence of a dedicated HR team, repeated breaches), and even if it makes no other financial award against that employer, an employment tribunal also has the power to impose a financial penalty. This is of 50% of the financial award (if any), subject to a minimum of £100 and a maximum of £5,000. Any such penalty will be discounted by 50% if it is paid within 21 days.
If an employment tribunal’s award (including any accrued interest) or costs order or any settlement sum is not paid in full after a period of 42 days or more from the date of the award, order or payment date specified under the agreement, the successful claimant may invoke a procedure to enforce payment.
An enforcement officer will issue to the offending employer a ‘warning notice’ containing a specified date, at least 28 days thereafter, by which the debt must be paid. If it is not, a ‘penalty notice’ will follow, stipulating the payment of an amount equivalent to 50% of the unpaid amount (minimum £100, maximum £5,000). If, within 14 days of the penalty notice, the employer both pays the unpaid amount (to the successful claimant) and the penalty (to the Secretary of State), the latter will be reduced by 50%.
The tribunal’s reconsideration of its decision ‘in the interests of justice’ may be requested, within 14 days of the written record of the decision being issued, by a party to proceedings or ordered by the tribunal itself.
Appeals against tribunal decisions can be made, on points of law only, to the Employment Appeal Tribunal. Subsequent appeals go upwards to the Court of Appeal (or, in Scotland, the Court of Session) and the Supreme Court.
Employment disputes that are based exclusively on the contract of employment (as opposed to rights created by employment legislation) are sometimes heard by the civil courts as an alternative or sometimes as a practical necessity. For example, an employment tribunal can only hear claims for breach of contract if they are on termination of employment and can only award a maximum of £25,000.