Employment Tribunal ProcedureFor Claimant Advisers
By
Elaine Banton 21 April 2008
Introduction
Importance of procedure
Consequences of breaches
Positives of following procedures
PreliminaryBefore issuing a claim
Strengths
Know case
Weaknesses
Know issues
Statutory Grievance ProcedureHave you complied?
Questionnaire Procedures Gather evidence (including statistics) before or
after proceedings have started
Preliminary
Before issuing a claim
Check the law in forceApril and December new acts/regs.
In force
E.g. New SDA provisions Corporate manslaughter – this April
Statutory Dispute Resolution Procedure3 Step Statutory Grievance Dismissal
and Disciplinary Procedure
Step 2 – meeting (right to be accompanied)
Step 3 – appeal (right to be accompanied)
Step 1Letter
Failure to comply with procedures - adverse
consequences for employee and
employer, s 31 EA 2002
Statutory Grievance Procedure
No jurisdiction if grievance not raised with employer first, s32 Employment Act 2002, Canary Wharf Management Ltd V Edebi [2006] IRLR 416
Wait 28 days after grievance before submitting claim to ET
Grievance raised can extend time for further 3 months. Can use time to collate evidence and/or pursue settlement.
Statutory Grievance Procedure
If claim solely about dismissal, no need to raise grievance and grievance will not extend time, Dispute Resolution Regs 2004, SI 2004/752, Reg 6(5), Lawrence v HM Prison Service (UKEAT/0630/06/CEA)
Not extend time against named Respondent, Odoemelam v Whittington Hospital (UKEAT/0016/06/DM, Governors of Alford House v McDonald (UKEAT/0224/07/JOJ)
If SGP breached could lead to uplift or reduction in compensation s31 EA 2002
Statutory Dismissal and Disciplinary Procedure
No jurisdiction if grievance not raised with employer first, s32 Employment Act 2002, Canary Wharf Management Ltd V Edebi [2006] IRLR 416
If SDDP not complied with – s98A ERA automatic unfair dismissal and uplift in compensation.
S98A(2) If SDDP complied with and dismissal still more likely, fair dismissal, Alexander v BridgenEnterprises Ltd [2006] IRLR 422 EAT affirmed by Kelly-Madden v Manor Surgery [2007] IRLR 17 EAT
Composition of Tribunals
Employment Judges – now from December 2007 Employment Tribunals Act 1996, s 3A, The Tribunals, Courts and Enforcement Act 2007Mediation to continue after pilot scheme. ACAS consulted prior to direction being made.Enforcement of ET awards to be enforced via the ET. Not yet in force.
Composition of Tribunals
Employment judge/Chairman sitting alone or panelof 3
Lay members:personnel and trade union backgrounds
Jurisdiction
Who is the employer? Where does the employee work? Where did the Acts complained of take place? Anderson v StenaDrilling Pte Ltd [2006] EAT
Res Judicata and Issue estoppel- Has the claim been brought before?- Could it, should it have been brought before? Henderson v Henderson [1843] 3 Hare 100, Divine- Bortey V London Borough of Brent [1998] ICR 886
ET1 FormInformation required to start a claim - rule 1(4):
(a) each claimant's name(b) each claimant's address(c) each respondent's name(d) each respondent's address(e) details of the claim
(f) whether or not the claimant is or was an employee of the respondent
(g) whether or not the claim includes a complaint that the respondent has dismissed the claimant or has contemplated doing so(h) whether or not the claimant has raised the subject matter of the claim with the respondent at least 28 days before submitting his/her claim(i) if the claimant has not done as described in (h), why he/she has not done so.
Commencing ET Proceedings
ET1 – Claim Form - Mandatory- Must be completed properly- Consequences if not completed, Hamling v
Coxlease School Ltd [2007] IRLR 8 EAT- Remember to refer to greivance relied on if
required- ET may return ET1 if not completed
correctly
Time Limits
3 months usually – unless extensionDiscrimination – just and equitability –wider discretion, Department of Constitutional Affairs v Jones. Court of Appeal [2007] EWCA Civ894, Virdi v Commissioner of Police of the Metropolis [2007] IRLR 24 EATContinuing acts
Unfair dismissal and other claims – not reasonably practicable stricter test, Beasley v National Grid Electricity Transmissions. EAT, 6.8.07 (0626/06) – 88 seconds late, RBS v Bevan(UKEAT/0440/07/LA)
Defending a Claim - ET3
Details sufficient to respondRespondent can accept claim
Jurisdictional points- Wrong person named- Time- s32 EA 2002- Illegal contracts
Case Management ConferenceEmployment Tribunal (Constitution and Rules of Procedure) Regulations 2004
Clarify Issues Prepare for final hearing
Issues PHR required?
Evidence Timetable
AmendmentDeposit
Strike out
Orders for Disclosure
Witness orders
Overriding objective
Further particulars
Amendment to ET1
If amendment required do so as soon as practicable-Selkent rules apply, balance of hardship and injustice test, Selkent Bus v Moore [1996] IRLR 661
- Precise wording of amendment must be given, Ladbrokes Racing v Traynor (UKEATS/0067/06/MT)
Strike out & Withdrawal of Claim
Strike out - ET Rules 2004- Prospects of success- Fair trial possible?
ET does not have power to set aside a notice of withdrawal. Where proceedings have not been dismissed or has been revoked on review or appeal a new claim may commence, Khan v Heywood and Middleton Primary Care Trust [2006] ICR 543
Procedure at Hearing
Relatively informal
Assist ET by preparing: Skeleton arguments
IssuesChronology
Closing submissions
ET will assist litigant in personIf too far and unfair, Birmingham City Council v Laws
EAT 0360/06
Remedies
Declaration of rights
CompensationInjury to feelings, Miles v Gilbank [2006] ICR 12
EATLoss of earnings
Just and equitable – uncapped PI included?
Unfair dismissal and other capped claims
Recommendation
Costs
If party or party’s representative has acted vexatiously, abusively,
disruptively or unreasonably Or misconceived proceedings
Calderbanking can be used,If offer bettered by ET could give rise to costs,
Kopel v Safeway Stores [2003] IRLR 753From Respondent perspective if offer not bettered by ET
Could give rise to costs.
Not follow the event
Appeal or Review
Review – to the ET and 14 days from promulgation of the
Decision/judgment complained of
Appeal to EAT, EAT Rules– 42 days from promulgation of Decision/judgment complained of –
Extension of time only in exceptional cases,Muschett v LB Hounslow, Khan v LPS,
Ogbuneke v Minster Lodge, Tallington Lakes v ReillyEAT 6.8.07 (0281/07;0285/07;0400/07;1870/06)
Written reasonsTime runs from
date on judgement
Referral to ECJ
Power to refer to ECJ, Article 234 of Treaty of Rome, When necessary to enable the court or tribunal to
give judgment.Case usually stayed pending the ECJ’s decision,
Coleman v Attridge Law [2007] IRLR 88 and with age Discrimination and retirement in Heyday judicial review
Johns v Solent SD Ltd UKEAT/0449/07
Employment Tribunals Claims and Procedures Summary
Questionnaire Procedures Gather evidence (including statistics) before
or after proceedings have started
ET1Consider if named Respondent necessary
3 month time limit (except for equal pay)
•Continuing act of discrimination•SGP grievance extends time
Consider if:
ChecklistWhat is the complaint about?Is there more than one complaint? Law changed?Are they eligible to bring a claim?Evidence, Witnesses?Statutory dispute resolution procedureGrievance required?Questionnaire procedure
ET1 Form completed properlyTime limits? –extended?Amendment needed?Issues clarifiedHearing –chronology, issues, closing submissionsRemedy – is there a PI element, Sheriff v KlyneTuggsAppeal or review –time limits