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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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