Employment tribunals: how do they work?
Although it is always best to attempt to resolve disputes with employers internally, the ultimate sanction is making a claim to the Employment Tribunal. The most common claims for working mums tend to be claims for unfair dismissal and sex discrimination arising out of pregnancy and maternity leave. This article considers the practicality of how to make claims to the Employment Tribunal.
When the Employment Tribunal was first established, the plan was that it would be a relatively speedy and informal method of resolving disputes and that it should be possible for individual employees to represent themselves without the assistance of lawyers. It is still possible for individual employees to do this and many people do. However, it is a complicated and fairly daunting prospect and many employees therefore prefer to have a solicitor representing them.
The start to finish costs of representing an employee in an Employment Tribunal claim are unlikely to be less than £3,000 plus VAT and could be substantially more than this.
There are good reasons as to why employees may consider being legally represented, but how do you get round paying solicitors fees? The answer is “no win no fee” legal service. Lemon&Co and some other solicitors provide such a “no win no fee” service. Therefore an employee feeling aggrieved about her situation may seek legal advice from firms like Lemon&Co to explore the possibility of being represented.
There is a time limit on making a claim to the Employment Tribunal. The general rule in dismissal cases is that the claim must be made within three months of dismissal. In non-dismissal cases, the general rule is that a letter of complaint must be sent within three months of the action that is complained about and the claim form should be received at the Employment Tribunal within six months of the action that is complained about.
The claim form can look daunting as it comprises of around ten sides of A4. However, most sections are irrelevant and most of the questions are straightforward. There is a section where you are given the opportunity to explain what the claim is about. It is usually better to attach a word-processed document to the form setting out the basis of the claim. There are a number of regional offices of the Employment Tribunal and you need to find out the office that applies to the place where you actually worked, the claim form should be sent to that address.
When the claim form is received at the regional office of the Employment Tribunal, it is sent to the employer. The employer is known as the respondent at the Employment Tribunal and the employee is known as the claimant. The respondent has 28 days to reply to the claim on what is known as the Response Form. The Response Form is sent back to the Employment Tribunal and then forwarded to the claimant or the claimant’s representative (if they have one).
When you receive the Response Form there are usually two issues to consider. The first issue is whether it might be helpful to have sight of any documents in the possession of the employer. As a general rule, the claimant is entitled to copies of any relevant documents including copies of any written records of meetings, any correspondence, any emails, and any policies. A request can simply be made in writing to the employer or their solicitor requesting this information. If the employer does not reply within a specified time frame, an application can be made to the Employment Tribunal for an order for discovery. The Employment Tribunal usually makes an order for discovery if it thinks that the paperwork is relevant to the case.
The sensible approach to take to settlement is to work out what you might win if you were to succeed in a claim at the Employment Tribunal. In claims for unfair dismissal, there is a basic award equal to statutory redundancy pay and then compensation for loss of earnings. If the claim also relates to sex discrimination, there can additionally be an award for injury to feelings. In a straightforward case where a pregnant employee has been dismissed for a reason related to their pregnancy, after being employed only for a short time, then loss of earnings might amount to between three and six months pay and an award for injury to feelings might amount to between £3,000 and £5,000. You then have to consider the prospects of winning.
The discussions over settlement can go on all the way to the date of the Employment Tribunal and it is not uncommon for settlement to be reached as parties are sitting in the waiting room about to go into the hearing. However, assuming that there is not going to be a settlement, a number of preparatory steps need to be taken for the Employment Tribunal hearing. The main preparatory steps involve preparing a number of documents and witness statements.
The documents required are simply a paginated collection of all the relevant paperwork put in chronological order with an index. The parties need to agree this bundle before the Employment Tribunal and are often given a specified deadline for doing so by the particular regional office. Most Employment Tribunals also require the parties to produce written witness statements before the date. The witness statements of the claimant will include a statement from the claimant themselves plus a statement from anybody else who may be appearing on the day as their witness. The witness statement is essentially a full and detailed description of what took place.
Most Employment Tribunals hearings are scheduled for one day, although they can be for two or three days in more complex cases. The Employment Tribunal takes place in an ordinary room that does not look quite like a courtroom. However, the Tribunal are often sat behind a table on a raised platform and it certainly feels like a formal environment. In most cases the Tribunal panel will consist of three members - a legally qualified Chairperson and two laypeople, one from a Trade Union background and one from an employer’s organisation background.
In most discrimination cases, the claimant will give evidence first. This involves the claimant reading out their prepared witness statement and then being subjected to cross-examination by the other side or by the other side’s lawyer. This cross-examination can take two or three hours or even longer. When the claimant and any of the claimant’s witnesses have given evidence, it will be the turn of the respondent’s witnesses to give evidence. The claimant or the claimant’s solicitor will then have the opportunity to cross-examine each of these witnesses. When all this is concluded both parties will be given an opportunity to make a closing address and the Employment Tribunal will then retire to make a judgement.
In practice, the Employment Tribunal tend to take a fairly active and interventionist role particularly in the case of unrepresented claimants. They will frequently take over the process of questioning and often interrupt with requests for clarification.
Lemon&Co Solicitors are often able to offer representation at the Employment Tribunal on a no win no fee basis and will always meet employees free of charge to discuss this option. For further information contact Helen Climance at Lemon&Co Solicitors on 01793 527141.