Employment Tribunal Process

Our guide to the employment tribunal process.

It is often said that proceedings at an employment tribunal are informal. Whilst this may have been the intention of the government that set up the present system forty odd years ago it is not what has happened in practice and there is better example of this than the fact that from the beginning of 2008 the presiding official at a tribunal has ceased to be called a chairman and is now called an Employment Judge.

Employment Tribunal Proceedings commence with the filing of a claim which is served upon the Respondent who then has 28 days to file a response in writing. These
written statements are not required to be detailed (a major difference from proceedings in the civil courts) and need do no more than outline the position of the party. There are those who would say that such written statements should not exceed 1 page.

Once a response has been filed then a judge will see the file and in straight forward case will issue a case management order which will usually require 5 things of the parties:

• Require the Claimant to serve the Respondent with a Schedule of Loss (that is a written statement of the compensation being claimed.
• Require the parties to disclose to each other all of the documents which they intend to put before the Tribunal as evidence.
• Require the parties to agree a trial bundle containing all the documentary evidence.
• Require the parties to exchange the written statements of all witnesses who will be called to give evidence at the hearing.
• Provide for listing the matter for hearing.

In less straight forward cases and in virtually all discrimination claims the Tribunal will hold what is known as a Case Management Discussion where a judge will seek to identify and narrow the issues to be tried as well as giving the sort of directions set out above and any others that might be necessary. It should be noted that there is a type of hearing called a Pre Hearing Review where the judge has power to strike out claims and will be used to deal with strike out claims, jurisdictional issues and preliminary points that might affect the claim.

So at last we get to the trial.

The Tribunal consists of 3 members chaired by an Employment Judge who is an appropriately qualified barrister or solicitor. The other 2 members are lay people representing both sides of the employment divide (employers and workers) and are drawn from Trade Association, employers organisations, HR professionals and Trade Unions etc. Tribunals sometimes describe themselves as an “industrial jury”.

The order in which the parties give evidence depends on where the burden of proof lies. The party who has the burden of proof will present their evidence first. In straightforward unfair dismissal cases the burden lies with the employer whereas in claims of constructive dismissal and discrimination the burden lies with the employee.

Before giving evidence witnesses are sworn in or affirm (an affirmation is a promise to tell the truth without out doing so on a holy book).

In the majority of tribunals a party will give evidence by reading his or her witness statement and during the course of this where documents in the bundle are referred to the Tribunal will read the documents at that time. Whilst the witness is reading his or her witness statement supplemental questions may be asked by that party’s representative usually relating to matters arising out of the other party’s witness evidence. Once the witness has finished reading the witness statement he or she will then be cross examined by the other part or their representative and once this has been completed the Tribunal members have the opportunity of asking questions, although even during the evidence a tribunal member may interrupt with a question. The above process will be repeated until every witness has given their evidence.

At the completion of the evidence both parties then make final submissions which deal with highlighting the evidence and matters of employment law.

The Tribunal will then retire to make its decision which may be announced on the day or which may be reserved and notified to the parties in writing at a later date.

If the Claimant has been successful there will then be a remedy hearing to determine the compensation to be paid to the Claimant. I do not intend to discuss awards in detail but it suffices to say that in dismissal cases there is a basic award consisting of the Claimant’s accrued entitlement to statutory redundancy pay and a sum for loss of statutory rights (on average about £300) plus a compensatory award based upon loss of net earnings.

Claimants are under a legal duty to mitigate their losses (mitigate is legalspeak for minimise) and means that they must get on their bikes and look for work and awards will be reduced if the Tribunal is satisfied that there has been a failure to mitigate. The tribunal can also limit or reduce awards where the Claimant has contributed to the situation or where the Tribunal is satisfied that he would have been dismissed in any event.

I can do no better than to briefly outline what happened in a case that I handled. There was a finding of unfair dismissal on a procedural technicality. In giving evidence the Claimant was unable to give much explanation about his efforts to find work but said that he could find a job in 3 weeks if he did not have a bad reference from the employer. The Tribunal heard and accepted evidence from the employer that in the 6 or 7 months since the dismissal they had received no requests for a reference for the Claimant. I submitted that there should be a substantial contribution because the circumstances that led to the dismissal were entirely the fault of the claimant. In dealing with the award the Tribunal found that there was a failure to mitigate loss and said that they took the Claimant at his word that he could find work in 3 weeks and limited the award to 3 weeks loss of earnings which they reduced by 90% as that was their assessment of the Claimant’s contribution. In announcing that the sum due to the Claimant was £34 the Judge reminded the Claimant that this might be recouped by the benefits authorities.