Rise of the employment tribunal

Staff Strategy

DAVID WRIGHT

FOLLOWING THE INTRODUCTION of fees for applicants in 2013, the number of employment tribunal claims plummeted by 70%. However, the abolishment of fees this year means the number of claims is expected to see a sharp increase.

Previously, charges started at £160 for issuing a claim plus a hearing fee of £950. Following a series of challenges by the trade unions, in July 2017, the Supreme Court effectively abolished fees because they found they indirectly discriminated against women and other protected groups.

What’s new

The basics haven’t changed. An employee needs two years’ continuous service to claim for unfair dismissal but not to claim unlawful discrimination. An employee can also make claims such as unlawful deductions of pay, breach of contract or non-payment of holiday pay. They must lodge their application within three months of the incident.

It’s now mandatory that employees first inform the Advisory, Conciliation and Arbitration Service (ACAS). There is then a period of 14 days to one month for “early conciliation” and a nominated ACAS employee will see if it is possible to resolve the differences. ACAS can advise on the strength of each side’s case and suggest possibilities for reaching an agreement. If a case can be settled without a tribunal, ACAS will produce a legally binding, confidential agreement for both parties to sign.

If the claim still needs to go to tribunal, a certificate is issued to confirm conciliation has taken place. The employee is then free to continue their claim within the time allowed.

Next steps

The employee completes a form called an ET1, to set out their claim and confirm they have been through the conciliation process. The tribunal acknowledges receipt and forwards it to the employer, who responds on a separate ET3 form, normally within 28 days.

At this stage, the process gets expensive. You usually have to close your business to attend. Even if you win, it’s unusual for the employee to have to pay your costs. So, you can see why so many cases are settled prior to tribunal.

The tribunal will give direction to both sides on how and when the case is to proceed. The employer is normally responsible for compiling the agreed bundle of documents.

The hearing

At the hearing, the employer normally gives evidence first and calls their witnesses. The employee or their rep can ask questions, as can members of the tribunal.

Many employers represent themselves but if you decide you need legal support then you pay for that even if you win. The average legal costs are around £8,500. It’s a stressful position to be in and tribunals are public so some cases attract publicity.

There are whole range of possible outcomes. The tribunal can hold a preliminary hearing to assess the case. It may be “struck out” if they feel it has no reasonable chance of success.

If the employer fails to respond to an ET1 application, the tribunal can make a decision based on the employee’s evidence. This is called a default judgment or rule 21. But of course, if the hearing does begin you are going to either win or lose.

Tel: 01302 563691 davidwrightpersonnel.co.uk