Set up in the 1970’s, the Industrial Tribunal was an informal, inexpensive and quick means of settling employment disputes. However, over the last 40 years, various rules of procedure have shaped it into its current form.
Whilst Employment Tribunal cases can be very complicated, they still tend to be more relaxed than, say, the County Court. We’ve already looked at Employment Tribunals from an individual claimant’s perspective, as well as Employment Tribunals from the point of view of a business, now we take a look at the procedures that are involved in a claim.
Regulation
All Employment Tribunal proceedings are regulated by the Employment Tribunal Rules of Procedure and the Employment Tribunal (Constitution on Rules of Procedure) Regulations 2013. There are also a series of Practice Directions which are useful in guiding practitioners and litigants in person on Tribunal procedure.
Commencing a claim
The manner in which a Tribunal claim progresses depends entirely on the type of claim that is being pursued.
When commencing a claim, claimants must ensure that they do so in good time as there are relevant (and strict) time limits to be adhered to, depending on the type of claim being pursued. In the event that a claim appears to have been issued out of time, the Respondent will invariably ask for a preliminary hearing to consider the point and seek to have the claim struck out. Whilst the Tribunal have a discretion to allow a late claim to progress, a Claimant must have very strong mitigating circumstances or else it will invariably be denied.
Early Conciliation
For the last couple of years there has been a requirement to undertake Early Conciliation via ACAS, prior to issuing a claim. Here an ACAS officer will see if they can mediate a settlement pre-litigation. The Early Conciliation process has the effect of pausing the normal time limits and allowing an extension of one calendar month after the conciliation concludes to issue a claim.
Responding to a claim
Once a claim is issued, the respondent typically has 28 days to respond. At that stage, and depending on the type of claim being pursued, the Tribunal will set a timetable moving the case forward.
In discrimination cases, the Tribunal will ordinarily list a preliminary hearing. In unfair dismissal cases, a preliminary hearing will only be applicable if one or other of the parties requests one to deal with a preliminary issue; such as a limitation or jurisdictional point or a point of merit.
A deposit order
It is possible for the Tribunal to make a deposit order at a preliminary hearing and it will do so if it believes that one or other of the parties has limited prospects of success. They may ask that a party deposits any sum up to £1,000 with the Tribunal as a condition of being able to proceed. Although this sum may not seem significant, if a party continues with their case following payment of the deposit and loses, the victorious side will have a far stronger argument that they should be awarded their costs from the losing side (something which does not happen as a matter of course).
Employment Tribunal costs
Traditionally, costs in the Employment Tribunal do not follow the event, i.e. the victorious party does not normally get their costs back. The costs situation can become more complicated if, for instance, a party has been unreasonable, or subject to a deposit order. The Tribunal has discretion to order a party to pay the other side’s costs.
The final hearing
In the run up to a final hearing, each side must disclose to the other, documents relevant to their case and, thereafter, there will be a simultaneous exchange of witness statement between the individuals who intend to give verbal evidence at Tribunal.
Prior to the final hearing, parties will be asked to agree a bundle of relevant documents, a list of issues, a chronology of facts and a schedule of loss. In certain cases, especially where parties are represented by legal professionals, skeleton arguments are submitted to the Tribunal beforehand to outline each party’s respective case.
Definitely no wigs
Tribunals are less formal than other courts; no wigs or gowns are ever worn by parties and each representative can remain seated throughout most of the hearing. Ultimately, it’s up to the Tribunal to decide in which order it hears the parties. A Tribunal is normally, by its very definition, made up of three people; a professional Judge and two lay members. More recently, the scope of a Tribunal Judge to sit alone has been extended and many cases now, including unfair dismissal claims, are dealt with by a single Judge. Discrimination claims are still dealt with by a true Tribunal.
The burden of proof
Typically, in unfair dismissal cases, the employer/company will give their evidence first. This is because, in the case of an unfair dismissal where a termination has taken place, the burden of proof rests on the employer to show that such termination was fair.
With discrimination cases, the burden is on the employee to show that they have been discriminated against and, therefore, the employee will traditionally present their case first. As we’ve mentioned, the Tribunal have ultimate discretion on how they accept evidence. In the case of witness availability, the Tribunal may take witness evidence out of order if it assists with the witnesses being available.
The judgment
At the end of a contested hearing, the Tribunal will give a judgment. This may well be an oral judgment, if there is time, or else it may be dealt with in writing. The judgment must include reasons why the Judges reached their decision.
The Tribunal will sometimes deal with both liability and remedy together, i.e. they will decide who wins the case and the value of any award. Otherwise, they may have a separate remedy hearing once it has been decided if the claimant has been successful or not.
Appealing against a judgment
It is possible to appeal against the judgment of the Tribunal to the Employment Appeal Tribunal (EAT). You can only appeal on a point of law and not merely because you are unhappy with the outcome. The EAT will not otherwise interfere with a lower Tribunal’s findings unless they are “perverse”, i.e. that the Tribunal has reached a decision which is so obscure or wrong on the facts that it should never have reached that decision in the first place.
A daunting prospect
Tribunal proceedings can be daunting and, although they were originally established for use by lay individuals, more often than not parties will have some form of legal representation (either a solicitor or barrister). Although Employment Tribunal procedure is more relaxed than the County Court, and parties do not need to be so concerned with costs, the area is a technical one and lay representatives may struggle to put forward the case that they intend.
Because of this, you’re likely to have a lot of questions when pursuing a claim. Thankfully, we’re here to offer employment tribunal advice from our team of highly experienced employment law advocates.
For further information please contact David Lewis on 01633 244233 or email lewisd@hevans.com
