This week, the IPA has been representing members in employment tribunals. Whilst we cannot discuss details of specific cases, the discussions we had with the members we represented have prompted us to write this article for your consideration.
Whilst the employment tribunal provides a channel for redress to aggrieved employees, or more often than not former employees, the process is more intricate, complex and finely balanced than a Google search would have you believe. In addition to the actual process there are nuances and complexities in law that mean that proceedings should not be entered into lightly.
Before any claim is lodged (with very limited exceptions) ACAS must be contacted to see if the issues between the parties can be resolved through early conciliation. Our experience is that whilst this requirement is intended to reduce the workload for the tribunal and prevent claims escalating unnecessarily, it is seen as a hoop to jump through. If one party does not wish to enter into conciliation talks, a certificate will be issued allowing the potential claimant to proceed.
The benefit for a claimant (the employee or former employee) is that fees to lodge a claim with an employment tribunal have been abolished, making it a more attractive option to an aggrieved claimant. This does not mean that costs can be avoided in their entirety, a frivolous, vexatious, or malicious claimant can find themselves at risk of what is known as a ‘costs warning’. Whilst costs are not normally awarded to either side in tribunal claims, such an order can be made under Rule 76 of the Employment Tribunal Rules of Procedure 2013.
Parties to tribunal proceedings will be expected to present their case at an early stage. Early disclosure of all relevant facts and documents to your representative is essential to ensuring that the best advice is given, and the best case be advanced on your behalf. Documents that weaken or are potentially detrimental to your case must also be shared – if you don’t it will be produced by the other side.
There are a number of points we discuss with members who may progress their case to an employment tribunal. One key area is what are the merits of the case? In other words, what are the prospects of success? We find that many people consider their case to be a ‘winner’, until the full facts are explored, and the alternative argument put to them. Where claims do have merit, the IPA can, and does, support its members through the process.
Do not underestimate the physical and emotional toll that process can have. We have claims that remain unresolved two years after the process started, we have dates for full hearings that are not until almost a year hence. In between hearing dates both parties will have been given ‘directions’ (things that they must do by certain dates) by the tribunal judge. Whilst we will prepare and submit any required documents, it does require significant time of the member as well.
At this point it is important to be aware that where a member fails to disclose fundamental facts of their case to us or fails to assist us an co-operate in progressing their claim, we may have to withdraw from the case. Any cases we take on are reviewed at regular intervals.
One key piece of advice we give to members is don’t make things personal. It is very easy to get consumed by the actions of one or two key individuals from the employer’s side in the process, but the claim will be against decisions made by the employer. Claims driven by personal grudges will be identified as such. Claims must be presented in a way that clearly set out the points of law in dispute, and the rationale for saying that the claimant has a valid claim.
In addition to instigating claims on behalf of members, we sometimes find ourselves in the situation where a member has advanced their own case to a certain point, and then comes to us to assist. Whilst this does not pose any difficulties in theory, problems do arise in as much as we are unable to undo what has occurred prior to our involvement, which may impact on the case. For that reason, we would always urge members to contact us to review their complaint before issuing an employment tribunal claim. The exception to that is in a case where the member is going to be time barred from presenting their claim unless it is done immediately. In most cases, the time limit to bring a claim is three months less one day of the event or action complained of. This is applied strictly by the tribunal.
In many cases, witness statements will be crucial to the case. If a member might have a case, it is important that notes of any processes, conversations, and copies of any written communications are kept. Given the possible time between the complaint arising and any claim being heard, it is likely that relevant points may be forgotten, or emails lost. Even a rough statement from a (potential) witness at an early stage will prompt the memory later.
Whilst our role is present the best case, and offer the claimant advice, support and guidance (which can be, and is sometimes ignored!) we would strongly urge members to follow the advice given, as it is our previous experiences of these processes that enables us to give you the best advice.
One element that cannot be disregarded is the human factor. Whilst we can assess a case on its merits, based on the relevant legislation and case law, there can be no guarantees when you are asking a judge to determine the outcome. This is not to suggest that experienced employment judges make the wrong decisions, rather you are asking a judge to interpret the documents placed before them and decide who has the most compelling arguments based on the evidence and the law.
The decision of an employment tribunal can be appealed. If you are successful, that may not be the end of the matter.
Important points to take away from this blog are:
- The employment tribunal provides an important mechanism for redress for (former) employees who feel aggrieved by actions of their employer.
- Advice should be sought at an early stage as to the merits of a possible claim, and all relevant documents disclosed to your adviser.
- The conciliation process through ACAS may resolve your dispute.
- A tribunal claim can be both physically and emotionally draining.
- Try to put aside personal disputes/grudges and focus on the points in dispute.
- If an issue with your employer is not going well, keep notes and records from an early stage.
- Respond to any requests from your adviser promptly.
- Listen to advice that is given.
- Contact your union if you think you may have an employment related issue that could escalate.
We can be contacted at firstname.lastname@example.org or 01444 441149