DAVID ROYDEN - EMPLOYMENT SOLICITOR
UK EMPLOYMENT LAW

David Royden is a Partner with Laytons Solicitors and Head of Employment Law, Manchester, UK

Laytons Solicitors is a national law practice specialising in all aspects of Company and Commercial Law

Laytons Solicitors, 22 St John Street, Manchester M3 4EB.
Tel: +44 (0) 161 834 2100
Fax: +44 (0) 161 834 6862

Offices at London, Manchester and Guildford, UK

 

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THE EMPLOYMENT TRIBUNAL PROCESS

What is the procedure for making a complaint?

An employee (called “the Claimant”) can make an application to an employment tribunal (on the form ET1(E/W) or ET1(Scot) (sometimes also referred to as an Originating Application) as soon as the employer (called “the Respondent”) has given the notice of dismissal. This application should give particulars of the grounds of the complaint and must normally be received within three months of the employee's effective date of termination (see Effective Date of Termination and Interim Relief below). If the application is received any later than that date the tribunal will consider the complaint only if they believe it was not reasonably practicable for the employee to have made the complaint within the three-month period and that it has been made within such further period as they consider reasonable. However, with the introduction of statutory dismissal and disciplinary procedures, the time limit will be extended in certain circumstances by a further three months where the employee has reasonable grounds for believing that a dismissal or disciplinary procedure (statutory or otherwise) is still in progress at the point where the normal time limit would have expired.

The office of the employment tribunals dealing with the employee's application form will send the employer a copy of the application and a form called a Notice of Appearance (ET3).The employer should fill in this form, stating whether or not he or she wishes to contest the case, and if so, giving particulars of the grounds for doing so. The employer and the employee may each request further particulars of the other's case. It is in the interests of both parties to fill in these forms as fully as possible so that the tribunal does not have to come back to them for further details and so that if the matter comes to a hearing both parties and the tribunal know exactly what is at issue. With the Notice of appearance the employer is also sent a copy of a booklet explaining employment tribunal procedures.

Time Limit: Unfair Dismissal

An application to an employment tribunal should normally be made as soon as the employer has given notice of dismissal and should be received within the period of three months beginning with the employee's effective date of termination (see Effective Date of Termination below and note particularly that the two exceptions described at the end of that section do not apply for this purpose). If the application is received any later than that date the tribunal will consider the complaint only if they believe it was not reasonably practicable for the employee to have made the complaint within the three-month period and that it has been made within such further period as they consider reasonable.

However, with the introduction of statutory dismissal and disciplinary procedures, the time limit has been extended by a further three months where the employee has reasonable grounds for believing that a dismissal or disciplinary procedure (statutory or otherwise) is still in progress at the point where the normal time limit would have expired.

Effective Date of Termination

The effective date of termination will be established in the following manner:

  • if either the employer or the employee gave notice and the employee worked through the notice period, then the effective date is the date on which that notice expires (but see the exceptions below);
  • if the contract was terminated without notice by the employer (except in cases where the employer should have given notice as required by law, when, for certain purposes, the effective date is the date that notice would have expired) the effective date is the day on which the employee was dismissed;
  • if the employee has received a payment in lieu instead of working part or all of the notice period, then the effective date is generally the last day on which the employee worked for the employer;
  • if the contract was terminated with or without notice by the employee then the effective date is the last day on which the employee worked for the employer (but see the exception below);
  • in the case of the expiry without renewal of a limited-term contract, the effective date is the date of expiry. A limited-term contract is a contract for a fixed term or the performance of a specific task, or one which ends when a specified event does or does not occur.

However, for the purpose of determining whether an employee has worked a sufficient qualifying period of continuous employment to make a complaint of unfair dismissal, and for certain other purposes (but not for the purpose of the time-limit within which a complaint must be made), there are two exceptions:

  • in cases where the employer has given shorter notice than that required by law, the effective date is the date the longer required notice would have expired if it had been given;
  • in cases where the employee terminated the contract of employment and where the employer had not already given notice the effective date will normally be the date of expiry of the statutory minimum notice period, which the employer would have had to give if he or she had dismissed the employee on the same day as the employee resigned.

Settling a Dispute

An employee who believes that he or she is entitled to make a complaint to an employment tribunal should first seek to resolve the dispute by mutual agreement with the employer - perhaps through the business's own grievance or appeals procedure, where one exists. The Employment Tribunal may reduce any award of compensation if no such steps have been taken. The employee and the employer may also seek advice from a conciliator of the Advisory, Conciliation and Arbitration Service (ACAS). However, it should be noted that the time limit for making a complaint to an employment tribunal (see above) will not normally be extended to allow for the fact that attempts have been made to settle the dispute in advance.

Role of the Advisory Conciliation and Arbitration Service (ACAS)

Once a complaint has been made to an employment tribunal, but before the hearing takes place, there is an opportunity for the case to be settled by conciliation.

Copies of completed application forms and the Notice of Appearance by the employer are sent by the employment tribunals to the Advisory, Conciliation and Arbitration Service (ACAS), an independent service, quite separate from the employment tribunal. Conciliation is attempted by an ACAS conciliator, who has a duty in most cases to try to assist, either at the request of the Claimant and/or the Respondent, or on his or her own initiative. The conciliator's job is to try to help the Respondent and Claimant make a voluntary agreement to settle the complaint without it having to go before an employment tribunal.

The conciliator usually begins by talking separately, and in confidence, to the Claimant and Respondent, encouraging them both to use any agreed voluntary appeals procedure where this has not already been done. The conciliator will discuss the case itself, help them to understand particular points in the law and qualifying conditions, and may draw attention to particular features of the case, including decisions taken in previous cases which may be similar. However, he or she will not offer any opinion on the merits of either side's case or 'take sides' in any way. Many dismissals are not clear-cut issues and quite often, in discussion with the conciliator, matters will be seen differently with the result that a voluntary solution will be reached through conciliation, as an alternative to the case going to the tribunal.

Where the Claimant and Respondent are willing, the conciliator will explore the possibility of the Respondent's reinstatement of the Claimant in the same job, or re-engagement in some other job. If an employee unreasonably refuses an offer of reinstatement any eventual award of compensation made by a tribunal can be reduced.

However, most conciliated settlements are those where the Respondent pays the Claimant a mutually agreed sum of money in compensation.

The employment tribunal hearing is quite separate from conciliation. If a date for the hearing is arranged but a settlement seems likely the parties can write to the tribunal and ask for a postponement. The conciliator does not normally attend the tribunal hearings, nor does he or she give the tribunal any report on the conciliation action. Anything communicated to a conciliator is not admissible in evidence before a tribunal except with the consent of the person who communicated it.

Interim Relief

Employees may make an application to a tribunal for interim relief if they consider that the reason or principal reason for their dismissal was:

  • their trade union membership or activities or their non-membership of a trade union; or
  • that they performed or proposed to perform any functions they had as health and safety representatives or committee members or as employees designated to carry out workplace health and safety activities; or
  • that they performed or proposed to perform any functions they had as an occupational pension scheme trustee; or
  • that they performed or proposed to perform any functions they had as an employee representative for consultation about redundancy or business transfers or as a candidate to be a representative of this kind or that they participated in the election of such a representative; or
  • that they performed or proposed to perform any functions they had as a representative of members of the workforce or as a candidate to be a representative of this kind for the purposes of the Working Time Regulations 1998; or
  • that they made a protected disclosure within the meaning of the Public Interest Disclosure Act 1998; or
  • that they exercised or sought to exercise rights relating to trade union recognition procedures; or
  • that they exercised or sought to exercise their right to be accompanied to a disciplinary or grievance hearing or that they accompanied or sought to accompany a fellow worker to such a hearing.

If at the interim hearing, the tribunal decides that they think it likely that at the full hearing the employee will be found to have been unfairly dismissed for one of these reasons, they may make an order that the employer temporarily reinstate or re-engage the employee or for the contract of employment to be continued until the complaint of unfair dismissal has been finally settled by agreement or decided at a tribunal hearing.

Applications for interim relief must be received by the tribunal within seven days of the effective date of termination.

Time Limit: Interim Relief

An application for interim relief must be received by an employment tribunal not later than seven days after the effective date of termination of the employee's employment. Where the employee is complaining that his or her dismissal was because of trade union membership or activities the application must be accompanied by a signed certificate from an authorised official of the trade union concerned supporting the complaint.

Employment Tribunal Hearings

Each tribunal normally consists of a chairman who is a lawyer and two other members, one from a panel of members representing employers, and the other from a panel of members representing employees. In certain circumstances however it may consist of a chairman sitting alone or with just one lay member. Tribunals hold most of the hearings in their own offices, which are situated in the larger towns and cities.

Preliminary Hearing

This may be arranged, before the substantive case is heard, to enable a tribunal to determine any issue relating to the entitlement of any party to bring or contest proceedings to which the originating application applies. Any of the parties may apply for such a hearing, or it may be convened at the decision of the tribunal, but notice must be given to all the parties in writing and an opportunity given to advance oral argument before the tribunal.

Pre-Hearing Review

A full tribunal or a chairman sitting alone may conduct a pre-hearing review of a case in advance of the full tribunal hearing.

If it appears that the case has little prospect of success, either party may be ordered to pay a deposit of up to £500 as a condition of continuing to proceed with, or defend, the case.

Joinder - 3rd Party Pressure for an Employee’s Dismissal

An employer who faces a complaint of unfair dismissal may have dismissed the employee concerned as a result of pressure, in the form of actual or threatened industrial action, exercised by a trade union because the employee was not a member of a trade union. If the employer or the employee making the complaint claims this is so, either of them may request that the union concerned be 'joined', or in Scotland 'sisted' (that is, brought in as a party), to the proceedings. If the tribunal finds the dismissal unfair, and the claim of pressure well founded, it may make any award of compensation wholly or partly against the union concerned, instead of against the employer. A request by either an employer or a dismissed employee to join a trade union or other person in unfair dismissal proceedings in this way will be granted by the tribunal if it is made before the hearing begins, but may be refused if it is not made until after the hearing has started.

Full Hearing

If the complaint is not settled or withdrawn at an earlier stage, it proceeds to a full hearing by an employment tribunal. Initially the intention was that tribunals would try to keep their proceedings as simple and informal as possible. However the significant increases in both the extent and complexity of legislation and case law over recent years has resulted in tribunal hearings necessarily acquiring a more formal and legalistic approach. Many claimants and respondents still put their own cases to the tribunal although many now choose to have a representative who may be a lawyer, trade union official, or representative of an employers' organisation.

The tribunal clerk explains the procedure to the parties before the case begins and the chairman will assist both parties in putting their case as the hearing proceeds. The tribunal will normally give both parties the opportunity to present their respective cases and question their own and the other party's witnesses. The tribunal panel may ask questions of the parties or their witnesses. It is in the interest of both the claimant and the respondent to attend the hearing. If one party is neither present nor represented, the tribunal may decide the case in their absence, after considering any written representations made. In some cases a tribunal finds it very difficult to reach a decision if a party does not attend and may adjourn the case.

A tribunal is likely to dismiss an application if the claimant fails to attend without explanation.

If the employer claims that the employee was not dismissed, the tribunal must first be satisfied by the employee that there was a dismissal. Once dismissal is established, it is normally for the employer to show that dismissal was for one of the reasons specified under the legislation (see Unfair Dismissal section: Has the Employer Established a Fair Reason For Dismissal?). Having established the reason for dismissal, the tribunal must then in most cases decide whether in the circumstances (including the size and administrative resources of the undertaking) the employer acted reasonably in treating that reason as a sufficient reason for dismissing the employee. However, if the employee claims that dismissal was on one of the grounds that are automatically unfair, it is for the employee to persuade the tribunal that this was so. If the tribunal agrees, it will find the dismissal unfair without needing to consider the reasonableness of the employer's actions. If the employee resigned but claims that the employer's conduct entitled him or her to resign, the onus is on the employee to prove that this was so.

Tribunal hearings are generally completed in one day, although some cases, particularly Discrimination cases, may take significantly longer. Decisions may be by majority vote, but in fact nearly all are unanimous. The tribunal usually announces its decision and the reasons for it straight away. A written decision is also sent to the parties, generally within three to six weeks. Both parties have a right to ask for a review of the decision and a right to appeal against the tribunal's decision, on a question of law, to the Employment Appeal Tribunal. Information on how to apply for a review of the decision, and how to appeal, is sent to the parties with the tribunal decision.

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