Employers like you will hope that you never have to attend an employment tribunal. Avoiding litigation is the principle goal, and this is precisely why Employer Advice are on-hand to support employers with your compliance. Should an instance arise, however, where you are going to be going to an employment tribunal, you need to follow
Employers like you will hope that you never have to attend an employment tribunal. Avoiding litigation is the principle goal, and this is precisely why Employer Advice are on-hand to support employers with your compliance.
Should an instance arise, however, where you are going to be going to an employment tribunal, you need to follow the right steps. By doing so, you can reach the best solution for your business.
Losing at employment tribunals can be a costly business. You might have to pay significant costs in compensation and risk losing staff as well as reputation.
At the end of this article is a handy employment tribunals guide which can be downloaded.
Read on for everything you need to know about tribunals or for more immediate support, why not contact our expert team at Employer Advice.
What is an employment tribunal?
Often abbreviated to an ET, an employment tribunal is a public body which is used to resolve workplace issues or disputes. A tribunal adjudicates on everything from an unfair dismissal claim to discrimination and is a key tool in the employment law system.
Claims are normally lodged between an employee and either:
Their potential employer.
Their former employer.
It is important that you realise you can face litigation even before a person becomes your employee. For example, during an interview process for a job applicant you can be taken to tribunal for discrimination.
An employment tribunal examines all the evidence to scrutinise any legal issues on the side of the employer (known as the respondent) which impact the employee (known as the claimant).
The tribunal process is often seen by lay members as less formal than judicial mediation in the Civil or High Court. However, this isn’t necessarily the case. The determining factor is the type of claim that is raised to the ET. Any decision made during tribunal proceedings is governed by UK law, meaning it is legally binding.
What types of claims are heard at an employment tribunal?
There are many different types of employment tribunal claims. A tribunal hearing could handle discrimination claims as much as wrongful or unfair dismissal. Here are some of the more common claims that employees can raise:
An employee who has been dismissed might lodge a grievance or seek a hearing if they have been dismissed. That may well lead to an employment tribunal hearing if the claim relates to wrongful dismissal, constructive dismissal or unfair dismissal.
A discrimination claim can arise if any of nine protected characteristics are deemed to have been wrongfully discriminated against. You should ensure that you protect against discrimination on the grounds of;
Marriage or civil partnership.
Pregnancy and maternity.
Religion or belief.
Workplace disputes can arise if there are issues with pay. In the public sector this may be raised with a trade union official. Employment tribunals hear most cases, regarding equal pay issues, illegal wage reduction, and missing pay.
What are the laws governing an employment tribunal?
The primary legal document which is used to govern an employment tribunal hearing can be found in the Employment Tribunals Rules of Procedure 2013. This document is published on the government website.
Both the employee and the employer must follow the correct processes throughout the tribunal process. Failure to do so may result in the other party’s case being overthrown, sometimes called a default judgment.
All of your employees have a right to seek legal advice and raise a claim against your business. This right extends to workers as well as employees.
Employees are protected against discrimination and victimisation throughout the claims process. This means you and your staff are prohibited from treating an employee detrimentally as a result of them making a claim against your company. For example, if you were to discipline them or dismiss them, you can face costly consequences.
Are there costs involved in raising employment tribunal claims?
Prior to a ruling in 2017 by the Supreme Court, it was normal to pay fees to an employment tribunal. This was subsequently ruled to be unlawful. So, employees no longer have to pay a fee to raise a tribunal claim.
What this means for employers is that there is no barrier to any employee raising a claim against you, certainly from a cost perspective.
The Supreme Court ruling was designed to allow employees to feel more confident in raising claims against employers for workplace issues. Should an initial hearing rule in favour of an employer (respondent) then there are also statutory rights and no fees for the claimant to go to Employment Tribunal Appeal, if there are grounds for doing so.
How does a full employment tribunal work?
If a claim reaches a formal hearing, i.e. if a claim cannot reach a settlement agreement, then there are two main types of hearing:
These are short hearings that fall into two categories. Firstly a case management hearing to consider the issues to be decided and to set the time table to be followed for the various stages of the case. . The purpose of this is to ensure that the case itself can proceed smoothly prior to a full hearing.
The second type of preliminary hearing is one to consider a distinct aspect of the case that has a bearing on the wider case progressing. An example would be a disagreement over the employment status of the claimant and whether or not they were entitled to bring the claim.
Put simply, this is the main stage of the employment tribunal process. A panel, or a judge sitting alonne, will consider witness statements from both side’s witnesses and all parties have the chance to submit relevant documents to support their claim or defense. The parties will then also cross examine the witnesses.
The key to successfully navigating a full hearing is being prepared. Both parties will normally exchange evidence prior to the hearing. These include employment contracts, letters, emails, meeting minutes, and any physical or digital records. The documentation is presented in a bundle which is normally prepared by the respondent. It is important that there is a contents page and all pages are numbered.
In addition, you should ensure that you prepare any witness statements from any witnesses that will be giving evidence at the hearing. These statements should be written in numbered paragraphs and make reference to any documents that have been disclosed. Again, the parties usually disclose these to each other in advance of the hearing. Although in Scotland evidence is given in person rather than by a witness statement.
What happens at an employment tribunal hearing?
All parties involved in an employment tribunal case are required to attend. That means any claimant, respondent and any witnesses must participate whether in person or remotely, as decided by the tribunal. It is important that everyone attends on time because of time limits.
At the final hearing itself, an employment judge will normally identify the most important issues and will check whether there are any preliminary hearing actions. In the majority of hearings, every witness statement will have already been submitted. Once this happens, the statements are taken as read, which means they are the chief evidence unless the ET states otherwise.
As in a normal judicial process, all witnesses will be asked to take an oath before being asked questions by the other side through cross examination, as well as their own. Engaging with a good legal representative is key, because a respondent has the chance to question the other side’s witnesses.
During the hearing a judge may also have questions for any witness. A judge will also set time limits for the tribunal hearing and can decide to flexibly manage proceedings as they see fit.
Once all parties have presented their evidence there is an opportunity for representatives from both sides to summarise their case. The tribunal will then either adjourn, deliver a decision immediately or reserve the decision to be made at a later date.
What are the outcomes of an employment tribunal?
Depending on the time available, nature of the dispute and volume of evidence, a decision, referred to as a judgement, is not always delivered on the same day as the hearing.
Once a tribunal reaches a judgement, there are a number of awards depending on the type of claim. These include:
Reinstatement (the employee gets their job back).
Re-engagement (the employee returns to the organisation in a new role).
Payment of wages or monies due to the employee.
It is worth mentioning that reinstatement and re-engagement are rare.
How to minimise employment tribunal claims
It goes without saying that the best thing you can do as an employer is to try and stop workplace disputes from arising. That could be creating the right culture; making good recruitment decisions or engaging regularly with your staff.
Should an employee raise a complaint, however, it is imperative that you deal with it fairly and lawfully. Not only does this help avoid litigation, it also impacts your workplace morale and employee relations.
You can minimise the risk of claims reaching employment tribunals through:
Disciplinary and grievance procedures
Having an easily implemented disciplinary and grievance procedure is an excellent first step to avoiding claims against your business.
The majority of your staff will be familiar with disciplinary and grievance procedures and the wording can be distributed in either employees’ employment contract or handbook.
A tribunal serves to mediate on cases that cannot be settled through informal meetings or talks. This is your first port of call in any disciplinary and grievance procedure. If an employee wishes to go further, this is where a formal hearing is needed.
Early conciliation process
Prior to a tribunal, if one of your employees wants to raise a claim against your business they must use early conciliation.
The Early Conciliation is also free of charge for the employee. The aim of Early Conciliation is to see whether the parties are willing to reach a financial settlement to bring the claim to an end. If a case is settled then the agreement is detailed in a COT3 agreement. The role of the conciliator is simply to act as a communication channel between the parties.
Settlement agreements, like early conciliation, are an alternative step for someone managing staff. To avoid going to tribunal you could offer a settlement to your employee.
The caveat here is that offering a settlement agreement in the wrong way or at the wrong time could add to an employees claims or create a new claim for the employee.
Any settlement is normally agreed outside a tribunal and is based on a mutual decision. This could be a financial payment or employment benefit, for example. Any claim raised by a claimant has to be retracted if they agree to settle.
How to deal with employment tribunal claims
If you are served court documents notifying you of an employment tribunal, it is important that you prepare properly.
Follow these steps to ensure that you are ready to attend the hearing if necessary, following alternative dispute processes.
Investigate the claim requirements
In order for a claim to be raised, employees must meet certain criteria in accordance with UK law.
These vary depending on the type of claim but may include:
Almost all claims, except for certain instances, should be made within strict time limits. Namely, three months after the incident occurred.
The majority of claims, again, except for certain instances, should go through early conciliation first. This will involve contact with a conciliator.
Having the required length of service qualify to bring the claim.
Failure to raise a claim within the three-month time frame could result in the claim being invalidated, although the rules are complex and the tribunal has a discretion to allow claims to be heard even if they are made outside of the time limit.
Fill in the response form
If both parties have gone through an unsuccessful early conciliation process, the employee may decide to start their employment tribunal claim.
They’ll need to fill in a FORM ET1 and the Tribunal will send it to you directly.
Employers must reply to the form within a certain period. If you’re late, it could lead to an automatic win for the claimant.
Get expert advice on employment tribunals with Employer Advice
Make sure you follow all the processes mentioned in this article if you’re preparing for tribunal hearings. If you ignore any steps, you could face losing workers, expensive fines, and reputational damage.
From dealing with the initial claim form to the final hearing, our expert advisors are here to help.
Employer Advice has a team of dedicated HR and employment law experts who only work with employers. With over 80 years of experience in helping employers take the stress of handling their HR and employment law obligations. Get in touch with one of the Employer Advice experts on 0800 470 0613.