- Posted Tuesday April 14, 2015
I recently attended a mock Employment Tribunal to see how they work and found it quite a sobering experience.
The seemingly organic management processes of an employer were methodically unpicked in public view, exposing non-adherence to procedure, as well as exposing letters, emails and texts that where obviously written without the intention that they would ever be scrutinised so formally.
The tribunal was also far more formal than I had expected, and very legalistic in its approach. My anticipation had been that the environment would be more akin to a ‘people’s court’ - apparently this was the case in the early days, but “the legal professionals have taken over” I was told.
The pace of these kinds of proceedings is slow – understandable because there is a large amount of information for the Judge to take in before arriving at a judgement. This also means that the cost of any solicitors (assuming they are paid by the hour) can soon start to mount-up.
Why do you need to understand the processes?
Whilst research suggests that the number of Employment Tribunal Claims may have fallen by over 70% since the introduction of changes in April 2014, it still remains one form of possible redress which some employees may choose to pursue.
According to government statistics, 4,386 single claims were made from October 2014 to December 2014 and 14,557 multiple claims were made during this time period.
The April 2014 changes mean that:
- Potential claimants must refer their claim to ACAS first
- Fees must be paid
- In circumstances where the employer’s behaviour is deemed to be malicious or have aggravating features, they may be obliged to pay a financial penalty (anything between £100 and £5000) to the government.
Internal grievance procedures
Before issuing any potential claim Employees should use their employer’s grievance procedure, prior to referring their claim to ACAS. Incorrect use of the grievance procedure can lead to a 25% reduction in any subsequent compensation payable to a claimant or, if the employer is at fault, an uplift of 25% to any such compensation payment..
ACAS mandatory early conciliation
Depending on the claim, claimants must contact ACAS before submitting a claim to a tribunal by completing an Early Conciliation (EC) form.
ACAS will appoint a conciliation officer to encourage both parties to resolve their differences ‘without prejudice’. If this fails, ACAS will issue an EC certificate, confirming that pre-claim conciliation has been tried. An employee can then issue a claim. If the conciliation succeeds, both parties will then enter into a legally binding agreement, preventing the employee from taking the claim any further or lodging a new claim, usually in return for a sum of money.
What happens once the claim has been made?
A claim must be issued within three months and one day from the date of dismissal.
The clock stops ticking during the early conciliation process, until either it is successful or an EC certificate has been issued.
If the three month time limit is reached before the EC certificate arrives, then the deadline is extended by one month from the date of its receipt.
Employees must complete form ET1 which submits their claim
The ET1 must be received by the Tribunal office within the previously stated time limit.
Then the employer must respond on an ET3 form within 28 days. The tribunal can reject either the claim or counterclaim if the correct procedures are not followed.
Any claim not accompanied by the correct fee will be rejected.
Claimants pay fees depending on the type of claim. Type B claims for unfair dismissal (ordinary and automatic), discrimination and whistleblowing attract issue fees of £250; all other claims (Type A) attract an issue fee of £160.
Hearing fees are £230 for Type A and £950 for Type B. There is a fee remission structure in place which means some claimants will not need to pay for all of the applicable fees.
These fees are over and above any costs incurred by an employer if they choose to have legal representation.
What to expect from the hearing
Both employee and employer must disclose information deemed relevant to the other side, including witness statements and medical reports.
Either side can request documentation from the other and can write to the tribunal if they feel that the information being requested is being withheld.
Fast track system
The tribunal will list an unfair dismissal case for a one day full hearing within 16 weeks of the date of issue of the claim.
Alternatively, a hearing date will be issued once the ET3 has been accepted, or when the tribunal has been given dates that must be avoided.
Hearings are mostly open to the public and can be reported in the press.
Witnesses can be in person or via a witness statements or sworn affidavits.
When giving any evidence, whilst witnesses can reference any documentation already presented to the court they cannot use copies of such documentation which they may have personally annotated to aid their memory.
Judgement and costs
A Judgement is made either at the end of the hearing or in writing.
Costs vary, but are typically between £6,500 and £8,000. Each party usually pays their own costs unless one party has behaved unreasonably.
What happens after the hearing?
For wrongful dismissal, an employee can claim damages from their employer for a sum equal to their salary plus benefits accrued during the notice period.
Unfair dismissal can attract either a basic award (up to a maximum of £13,920) or a compensatory award (based on loss of earnings up to a maximum of £75,574 or 52 weeks gross salary, depending on which is the lesser).
There is no limit on the compensatory award for claims linked to discrimination, whistleblowing or where the employee was carrying out health and safety activities.
Either party can appeal to the Employment Appeals Tribunal (EAT) within 42 days if they believe the tribunal has made an error in law. It is worth noting that appeals are only accepted in limited circumstances and fees are payable.
Far better to manage all people issues in a fair reasonable, legislation and policy compliant manner which minimises any risk of an employee seeking redress in a Tribunal.
However, if you do get presented with a claim then, seek legal advice early. This may be accessible via the BMA, your insurers or the Clinical Defence Union of which the practice has membership.
If the potential of an Employment Tribunal is something you are concerned about you might also want to consider Thornfields’ Employment and Contractual Responsibilities workshop. The one day workshop ensures Practice Managers are able to help the practice meet the legal and best practice guidelines.
For specific queries regarding Employment Tribunals contact email@example.com where you question will be treated in confidence and will normally be answered (by email) within 2 working days of submission.
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