Darlingtons has a team of highly experienced employment tribunal claims solicitors and lawyers able to advise and assist both employers and employees on the full range of employment disputes in the Employment Tribunal. There are a large number of possible Employment Tribunal claims, the most common being a tribunal claim for unfair dismissal and/or constructive dismissal, which is described below. For more detailed guidance please telephone and ask for our Employment Tribunals team or complete our online Employment Tribunals claims form.
Procedure
• For unfair dismissal use form ET1
• No court fee to start claim
• An 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
• 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.
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.
Employment Tribunal Hearings
Preliminary Hearing
This may be arranged, before the full 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 arranged at the decision of the tribunal, but notice must be given to all the parties in writing.
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.
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.
• 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.
• 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.
