Employment Tribunals and Procedure (Constitution, jurisdiction, etc)
Key points
§ Employment tribunals were first established by section 12 of the Industrial Training Act 1964 to hear appeals by employers against any notice of assessment to levy (the training levy) imposed by industrial training boards under section 4 of that Act.
§ The law relating to the composition and jurisdiction of employment tribunals (and of the Employment Appeal Tribunal) is presently to be found in the Employment Tribunals Act 1996 and in regulations made under (or saved by) that Act. In short, proceedings may be brought before an employment tribunal on a complaint or reference under a variety of statutes and regulations, notably the:
o Equal Pay Act 1970;
o Sex Discrimination Acts 1975 and 1986;
o Race Relations Act 1976;
o Transfer of Undertakings (Protection of Employment) Regulations 1981;
o Trade Union & Labour Relations (Consolidation) Act 1992;
o Pension Schemes Act 1993;
o Disability Discrimination Act 1995;
o Employment Rights Act 1996;
o Working Time Regulations 1998;
o National Minimum Wage Act 1998;
o Employment Tribunals Act 1996;
o Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000;
o Tax Credits Act 2002;
o Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002.
An appeal from any decision of an employment tribunal under (or by virtue of) the Acts or Regulations listed above lies to the Employment Appeal Tribunal alone (EAT) (per section 21, Employment Tribunals Act 1996).
§ An employment tribunal ordinarily consists of a Chairman (a barrister or solicitor of at least seven years' standing) and two lay members drawn from two panels of members appointed by the Secretary of State for Employment – one, after consultation with employers' organisations; and the other, after consultation with employees' organisations (ie, the trade unions). Most originating applications (or complaints) are heard by a three-member tribunal. However, with the 'appropriate consent' (that is to say, consent given at the beginning of a tribunal hearing by such of the parties as are then present in person or represented, or consent given by each of the parties) proceedings before an employment tribunal may be heard by the chairman and just one lay member (ibid. section 4(1), as amended by section 4 of the Employment Rights (Dispute Resolution) Act 1998).
| Note | When cases are brought under the Equal Pay Act 1970, or the Sex Discrimination Act 1975, one member of the three-member tribunal will usually be a woman, although this is not mandatory. Similarly, in cases alleging unlawful discrimination under the Race Relations Act 1976, one of the tribunal members will ordinarily be a person with special experience in race relations. |
§ All tribunal hearings take place in public unless a Minister of the Crown has directed a tribunal to sit in private on grounds of national security. A tribunal may also sit in private to hear evidence that consists of:
o information that a person giving that evidence could not otherwise disclose without contravening a prohibition imposed by or under any enactment; or
o information that has been communicated to that person in confidence or which that person has otherwise obtained in consequence of the confidence reposed in him or her by another person; or
o information the disclosure of which would cause substantial injury to a person's business or the business or organisation for which he or she works, for reasons other than its effect on negotiations with respect to a trade dispute.
§ A tribunal chairman sitting alone may hear proceedings:
a. on a complaint (or an application) under section 68A of the Trade Union & Labour Relations Act 1992 (relating to the deduction of unauthorised or excessive 'union dues');
b. on a complaint (or an application) under ibid. section 87 (noncompliance by the employer with a tribunal order under (a) above);
c. on a complaint under ibid. section 192 (employer's failure to pay remuneration under a protective award);
d. on an application under ibid. section 161 for interim relief in consequence of a complaint by an employee that he (or she) had been unfairly dismissed on grounds related to his trade union membership or activities;
e. on an application under ibid. section 165 for the variation or revocation of an order for interim relief under (d) above;
f. on an application under ibid. section 166 concerning an employer's non-compliance with the terms of a tribunal order for the reinstatement or re-engagement of an employee;
g. on a complaint under section 126 of the Pension Schemes Act 1993 (failure of Secretary of State to pay a sum equivalent to unpaid pension contributions into an occupational pension scheme when the employer is insolvent);
h. on a reference under section 11 of the Employment Rights Act 1996 concerning an employer's failure to provide a written statement of employment particulars (or a statement of changes in the particulars to be included in such a statement) or an itemised pay statement;
i. on a reference by an employee under section 163 of the 1996 Act concerning his (or her) right to a redundancy payment or the amount of a redundancy payment;
j. on an application by an employee under ibid. section 170 concerning the Secretary of State's alleged failure to pay (out of the National Insurance Fund) the whole or part of a statutory redundancy payment owed to the employee by his (or her) insolvent employer;
k. on a complaint by an employee under ibid. section 23 that his (or her) employer has made one or more unauthorised deductions from his wages, or has demanded (and received) one or more unauthorised payments;
l. on a complaint by an employee under ibid. section 34 concerning his (or her) employer's failure to pay the whole or any part of a guarantee payment to which the employee is entitled;
m. on a reference under ibid. section 188 concerning the Secretary of State's alleged failure to pay (out of the National Insurance Fund) arrears of pay, accrued holiday pay, money in lieu of notice, etc, owed to an employee by his (or her) insolvent employer;
n. on a complaint by an employee under ibid. section 70 relating to the employer's failure to pay the whole or any part of the remuneration to which the employee was entitled while suspended from work on medical grounds;
o. on an application under ibid. section 128 for interim relief by an employee who has presented a complaint to an employment tribunal that he (or she) had been unfairly dismissed for carrying out (or proposing to carry out) his functions or activities as:
o a trade union-appointed safety representative,
o an employee-elected safety representative,
o a member of a safety committee, or
o a person designated (or acknowledged) by his employer as having responsibility for health and safety matters;
p. on an application under ibid. section 128 for interim relief by an employee-elected workforce representative (or by a candidate for election as such a representative), under the Working Time Regulations 1998, who has presented a complaint to an employment tribunal that he (or she) had been unfairly dismissed for performing (or proposing to perform) any functions or activities as such a representative (or candidate);
q. on an application under ibid. section 128 for interim relief by a trustee of a relevant occupational pension scheme following a complaint that he (or she) had been unfairly dismissed for performing (or proposing to perform) his functions as such a trustee;
r. on an application under ibid. section 128 for interim relief by an employee who has presented a complaint to an employment tribunal alleging that he had been unfairly dismissed for performing (or proposing to perform) his functions or activities as an employee representative or as a candidate for election as such a representative;
s. on an application under ibid. section 128 for interim relief by an employee who has presented a complaint to an employment tribunal alleging that he had been unfairly dismissed for having made a 'protected disclosure' (within the meaning of the Public Interest Disclosure Act 1998);
t. on an application under ibid. section 131 (by an employer or employee) for the variation or revocation of an order for interim relief on the ground of a relevant change of circumstances since the making of the order under paragraphs (o) to (s) above;
u. on an application under ibid. section 132 concerning an employer's failure to comply with the terms of an order for the reinstatement or re-engagement of an employee pending the determination or settlement of the employee's complaint that he or she had been unfairly dismissed for one or other of the reasons specified in paragraphs (o) to (s) above;
v. for the appointment of an 'appropriate person' to institute or continue with any tribunal proceedings on behalf of a deceased employee arising (where there is no personal representative to represent the interests of that employee) (ibid. section 206(4));
w. in breach of employment contract cases in respect of which an employment tribunal has jurisdiction by virtue of Regulations made under (or saved by) section 3 of the Employment Tribunals Act 1996;
x. in which the parties have given their written consent to the case being heard by a chairman sitting alone (whether or not they subsequently withdraw that consent);
y. in a case in which the person bringing the proceedings has withdrawn his complaint; and
z. in a case in which the person (or each of the persons) against whom the proceedings were brought no longer wishes to contest it.
Under the 'Collective Bargaining: Recognition' of the Trade Union & Labour Relations (Consolidation) Act 1992, an employee who is unfairly dismissed for acting to obtain or prevent recognition of a union, or for supporting or not supporting recognition, or for voting or not voting in a ballot for recognition, or for influencing or seeking to influence the way in which votes are cast, etc, will have the right to apply to an employment tribunal for interim relief pending the full hearing of his complaint (per section 128(1) of the Employment Rights Act 1996, and paragraph 161(2) of Schedule A1 to the Trade Union & Labour Relations (Consolidation) Act 1992).
§ An application for interim relief may also be made by a worker who has presented a complaint to an employment tribunal that he (or she) had been unfairly dismissed for exercising or seeking to exercise his right to be accompanied at a disciplinary or grievance hearing by a trade union official or fellow employee, or for seeking to postpone the hearing for up to five working days to enable his chosen companion to attend the hearing (per section 12(5), Employment Relations Act 1999, not yet in force).
§ Although a tribunal chairman has the right to hear proceedings under (a) to (z) above sitting alone, he may decide that it is more desirable for a particular case to be heard by the standard three-member tribunal. A chairman may do so (either before or at any time during the proceedings) if the facts of the case are likely to be disputed by one or other of the parties or if there is an important issue of law to be aired. In making his decision, the chairman will consider the views of the parties concerned.
Rules of procedure
§ The rules of procedure for tribunal hearings in England and Wales are laid down in the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2001, which came into force on 18 April 2001. For Scotland, the rules of procedure are as laid down in the eponymous (Scotland) Regulations, which came into force on the same date. The rules of procedures contained in Schedules 1,2,3,4, 5 and 6 to those Regulations may be referred to, respectively, as:
a. the Employment Tribunals Rules of Procedure 2001;
b. the Employment Tribunals (National Security) Complementary Rules of Procedure 2001;
c. the Employment Tribunals (Equal Value) Complementary Rules of Procedure 2001 – which complement the rules in (a) above and apply to proceedings involving claims for equal pay for work of equal value under the Equal Pay Act 1970;
d. the Employment Tribunals (Levy Appeals) Rules of Procedure 2001 – which apply to appeals against assessments to industrial training levy under the Industrial Training Act 1982;
e. the Employment Tribunals (Improvement & Prohibition Notices Appeals) Rules of Procedure 2001 – which apply to appeals against improvement and prohibition notices served under the Health & Safety at Work etc Act 1974; and
f. the Employment Tribunals (Non-Discrimination Notices Appeals) Rules of Procedure 2001 – which apply to appeals against non- discrimination notices served under the Sex Discrimination Act 1975, the Race Relations Act 1976 or the Disability Discrimination Act 1995.
| Note | This section of the handbook concentrates on the Employment Tribunals Rules of Procedure 1993 (as outlined in Schedule 1 to the 2001 Regulations). Most tribunal hearings are conducted in accordance with those rules. |
Infringements of statutory employment rights
§ The Employment Tribunals Rules of Procedure 2001 apply to proceedings relating to applications, complaints or references under the enactments and regulations listed at the beginning of this section (as well as under the Health & Safety at Work etc Act 1974).
§ In July 1994, the jurisdiction of the employment tribunals was extended to include all breach of employment contract cases except for personal injury claims, which latter remain a matter for the civil courts. However, there is an upper limit of £25,000 on the amount a tribunal may award in breach of employment contract cases. A claimant seeking higher damages should do so through the civil courts (which latter retain concurrent jurisdiction) (per section 3, Employment Tribunals Act 1996).
§ The procedure for the bringing and hearing of an appeal against an improvement or prohibition notice under the Health & Safety at Work etc Act 1974 is explained in the notice itself (and in our companion handbook, An A-Z of Health & Safety Law). The same is true of appeals against 'Non-Discrimination Notices' served on an employer by either the Equal Opportunities Commission, the Commission for Racial Equality or the Disability Rights Commission
§ Most complaints dealt with by the employment tribunals are presented by employees seeking remedies for alleged infringements of their statutory rights in employment – in particular, the right not to be unfairly dismissed. In this respect, it is important to point out that – except in a case of alleged unfair dismissal or a claim for damages arising out of a wrongful dismissal, in which termination will have already occurred – an employee does not have to terminate his (or her) employment in order to complain to a tribunal about an alleged infringement of his statutory employment rights, eg his right to be given a written statement containing particulars of the terms and conditions of his employment or to receive an itemised pay statement. Indeed, if an employee is dismissed either for asserting one or other of his statutory employment rights or for complaining to an employment tribunal that his employer has infringed such a right, his dismissal will be held to have been unfair – even if the evidence later shows that the employee was not entitled to the right he claims was infring.
The procedure in operation
Originating application (Form IT1)
| Note | An employee who has signed a legally-binding COT 3 agreement, or a valid compromise agreement, or who has agreed in writing to submit a dispute to arbitration under an approved ACAS arbitration scheme thereby forfeits his right to institute or continue with the proceedings to which the agreement relates. |
§ Proceedings for the determination of any complaint by an employment tribunal are begun by the applicant or complainant (usually an employee or former employee) forwarding an originating application to the Secretary to the Employment Tribunals. In practice, the application should be sent to the applicant's nearest regional (or other) office of the employment tribunals (ROET or OET). The form recommended for that purpose is Form IT1 (Originating Application to an Employment Tribunal) (in Scotland, Form IT1 (Scot)), copies of which will be supplied by any job centre or office of the Employment Tribunals Service. The information pack accompanying Form IT1 will indicate the address of the ROET or OET to which the applicant or complainant should send the form once completed.
| Note | A person who presents a complaint to an employment tribunal is referred to as the applicant or the complainant. The person against whom the complaint is made is known as the respondent. If either party appeals to the EAT or a higher court against the decision of a tribunal, he or she) becomes the appellant, and the other party, the respondent. To avoid confusion, the text in this section uses the more familiar terms employee and employer. The parties to a tribunal hearing will be either of the employer or the employee (or both) and any other person (eg, a trade union representative) joined (or both) as a party to the proceedings. |
§ Although use of Form IT1 is not mandatory, the form does require the complainant to provide all the information needed by the Secretary to the Tribunals to enable him to decide whether or not the matters raised in the application are within the jurisdiction of the tribunals. If a complainant is unable to obtain a copy of Form IT1, a letter will suffice.
But there may be a further exchange of correspondence before the complainant's originating application is accepted and formally 'registered' (see next paragraph).
§ Most complaints or references to a tribunal must be submitted to the Employment Tribunals Service within three months of the alleged infringement or within three months of the effective date of termination of the employee's (the complainant's) contract of employment. Nowadays, tribunals are reluctant to hear complaints presented 'out of time' – although they will do so if satisfied that it was not reasonably practicable for the complainant to have submitted his originating application before the three-month deadline.
Action upon receipt of an originating application (or complaint)
§ Within 28 days of receiving an originating application, the Secretary to the Tribunals must enter the relevant particulars in the Register of Applications, Appeals & Decisions. If the application appears to involve allegations of the commission of a sexual offence, the Secretary has a duty to omit information that could lead members of the public (or the media) to identify the person or persons making those allegations or affected by them.
| Note | The Secretary will send copies of most originating applications to a conciliation officer of the Advisory, Conciliation and Arbitration Service (ACAS). It is the job of a conciliation officer to try to assist the parties to reach a settlement before the complaint goes to a full tribunal hearing. This procedure does not delay arrangements for the tribunal hearing; nor is anything said to or by the conciliation officer admissible in evidence at the subsequent tribunal hearing without the express permission of the parties concerned. |
§ If the Secretary considers that an originating application does not seek or (on the facts stated in the application) cannot entitle the employee to a relief that an employment tribunal is empowered to give, he will write to the employee giving his reasons for that view and informing the employee that his (or her) application will not be registered until he confirms in writing that he still wishes to proceed with it.
| Note | For example, it may be obvious to the Secretary (from the information provided in the originating application) that the employee is not qualified to register a complaint – perhaps because he (or she) does not seem to have been employed for long enough to qualify for the right he claims has been infringed. In such a case, the Secretary will inform the employee of his opinion and will ask him to confirm that he still wishes to proceed. However, it is as well to point out that the Secretary cannot refuse to accept an originating application. If the employee insists on proceeding, the Secretary must register the application and progress it in the normal way. |
§ Once he has registered an originating application, the Secretary will send a copy to the respondent employer – together with a Notice of appearance (Form IT3) – asking him if he intends to contest the employee's complaint and, if so, to give particulars of his grounds for doing so. If the employer does not enter an appearance within 21 days (without good reason), he will not normally be entitled to take any part in the later proceedings (other than to receive a copy of the tribunal's decision), although he may be called as a witness. If the employer does enter a Notice of appearance, a copy will be sent to the employee.
Notice of hearing
§ Except in the case of an application for interim relief (which must be presented within seven days and heard as soon as possible), the Secretary will give the parties concerned at least 14 days' advance written notice of the date, time and place fixed for the tribunal hearing. The notice will also include information and guidance about the hearing itself, the attendance of witnesses, the documents (if any) that must be produced, the right of either party to representation by another person, and affidavits.
§ Before the date fixed for the tribunal hearing, a tribunal may call for a pre-hearing review (either of its own motion or on the application of one or other of the parties) to consider the contents of the (employee's) originating application and the (employer's) notice of appearance, as well as any written representations and any oral argument advanced by either party.
| Note |
§ If, at the end of a pre-hearing review, the tribunal decides that the employee's complaint (or the employer's response) has no reasonable prospect of success, it will order the employee (or the employer, as the case may be) to pay a deposit of up to £500 as a condition of being permitted to take the issue before a full tribunal hearing. The tribunal will also caution that party that he (or she) could forfeit his deposit if he loses his case at the full hearing and could have an order for costs made against him. If the deposit is not paid within 21 days (or within such further period not exceeding 14 days, as the tribunal may allow, in the light of representations made by the party in question) the tribunal will strike out the originating application or notice of appearance of that party. It is as well to point out that, in determining the amount of any deposit to be paid, an employment tribunal must take reasonable steps to ascertain the ability of the party to pay that deposit (ibid. Rule 7).
§ To avoid the risk of bias, Rule 7(9) of the 2001 Rules of Procedure states that no member of a tribunal which has conducted a pre-hearing review may be a member of the tribunal at the subsequent full tribunal hearing. In other words, the full hearing must be conducted by a newly-constituted tribunal.
| Note | The opportunity for a pre-hearing review (previously referred to as a 'pre-hearing assessment') was first introduced by the Employment Tribunals (Rules of Procedure) Regulations 1980 (since overtaken by the 2001 Rules of Procedure. The purpose of a pre- hearing review is to discourage a time-consuming and costly tribunal hearing whose outcome is predictable. If an employee insists on pursuing a complaint that he has little prospect of winning, he will not only have to pay a deposit of up to £150 (which he must well forfeit) but could also be ordered to pay the other party's costs on top of his own. The same will be true of a respondent (usually the employer) who presses ahead with a case that he is almost certain to lose. |
Restriction on 'vexatious' proceedings
§ Section 33 of the Employment Tribunals Act 1996, empowers the Employment Appeal Tribunal (EAT) to make a 'restriction of proceedings' order against any person who habitually, persistently and without reasonable grounds institutes vexatious proceedings (or makes vexatious applications) in an employment tribunal or before the EAT. Such an order (which will not be made until the person concerned has been given an opportunity to put his or her point of view) is designed to prevent a known litigious applicant from pursuing spurious complaints and appeals anywhere in Great Britain – without the leave of the EAT.
§ A copy of a restriction of proceedings order (which will remain in force indefinitely, unless stated otherwise) will be published in the London Gazette and in the Edinburgh Gazette.
§ Each of the parties to a tribunal hearing (including any person joined or sisted as a party to the proceedings) has the right to arrange for witnesses to attend the hearing to give evidence on his (or her) behalf. The tribunal can order the attendance of (possibly reluctant) witnesses and can require the production of any document relating to the issues under consideration. Any person who fails to comply with either requirement, without reasonable excuse, is guilty of an offence and liable on summary conviction to a fine of up to £1,000.
§ A tribunal can order the attendance of witnesses or the production of documents either before the date set for the hearing, or at the hearing itself. An employee may, for example, apply to the tribunal for an order directing his (present or former) employer to supply copies of documents that he considers pertinent to his case.
§ All documents that a tribunal considers to be relevant to the issues under consideration must be produced at the tribunal hearing. These will usually include (in the appropriate cases):
o the employee's contract of employment (or the written statement of terms and conditions of employment required by section 1 of the Employment Rights Act 1996);
o the employee's job description, copies of collective agreements, disciplinary rules and procedures, performance appraisals, etc;
o pay statements, wage records, details of bonus earnings and commissions paid;
o documents relating to other benefits received, eg travelling expenses, car allowance, board and lodging, pension scheme, etc;
o details of any severance or redundancy payment, money in lieu of notice, etc, paid to an employee on the termination of his employment; and
o evidence of verbal and written warnings, details of disciplinary and disciplinary appeal hearings; and so on.
§ Also admissible in evidence are an employer's replies (or failure to reply) to questionnaires sent to him by a complainant (or would-be complainant) under the 'Questions & Replies' procedure laid down in the Sex Discrimination Act 1975, the Race Relations Act 1976, and the Disability Discrimination Act 1995 – as to which, please turn to the 'questions and replies' entry in the Index or to the sections .
§ Copies of the documents that an employer intends to produce in evidence at a tribunal hearing must be sent to the employee (and vice versa) well in advance of the date fixed for the tribunal hearing.
§ If a tribunal hearing has to be adjourned or postponed because of an employer's failure to produce documents necessary for the determination of an award of compensation (if such an award is to be made), the employer may be ordered to pay the costs associated with that adjournment or postponement.
Procedure at the hearing
§ The procedure at a tribunal hearing is orderly, but simple and flexible. According to Rule 11 of the 2001 Rules of Procedure (qv): 'The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such a manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings.'
§ Either party may give evidence, may call witnesses to give evidence, and may question both his (or her) own witnesses and those brought by the other party. The order in which evidence is given may be varied at the discretion of the tribunal. However, it is customary for the party on whom the burden of proof rests (eg, the respondent employer in unfair dismissal cases) to begin the proceedings by making an opening statement and calling his evidence. Either party may present his case in person or be represented by any person whom he has asked to represent him and who has agreed to do so.
§ The tribunal clerk will normally advise the parties about procedure before the case begins and is available to give information about the arrangements. If need be, the tribunal will give guidance on procedure to a party during the presentation of his (or her) case. Tribunal members may themselves ask questions of parties or witnesses in order to obtain relevant facts.
§ If one of the parties is not present or represented at the hearing, the tribunal may decide the case in his (or her) absence. If, as sometimes happens, the applicant fails to attend without explanation, and the tribunal cannot reach a decision in his absence, his application (or complaint) may be dismissed.
§ As was indicated earlier, tribunal hearings are normally open to the public, including representatives of the Press. A tribunal will agree to a private hearing if satisfied that the evidence to be produced at the hearing is likely to contain information whose disclosure would cause substantial injury to any business or undertaking, or information that could not be disclosed by a person in public without contravening a prohibition imposed by or under any enactment.
§ In any case involving allegations of sexual misconduct or unlawful discrimination on grounds of disability (when evidence of a personal nature is likely to be heard), a tribunal may make a restricted reporting order, either before the hearing begins or at any time before it promulgates its decision. It may make an order either on the application of one of the parties (to the Secretary of the Tribunals) or of its own motion. However, before doing so, the tribunal will give each party an opportunity to 'advance oral argument' at the hearing, 'if they so wish'.
| Note | 'Promulgation' of an employment tribunal's decision occurs on the date recorded as being the date on which the document recording the determination of the originating application was sent to the parties. This may be some weeks after the oral decision announced by the tribunal chairman at the conclusion of the hearing. |
§ A restricted reporting order will specify the person (or persons) who may not be identified either by the media or by any other person. Unless revoked earlier, the order will remain in force until the tribunal promulgates its decision. If an order is made, a notice of that fact will be displayed both on the tribunal notice board (alongside a list of the proceedings taking place before the tribunal) and on the door of the room in which the relevant tribunal hearing is in progress or about to take place.
§ If any identifying matter is published by a newspaper, radio or television programme (or the like), in contravention of a restricted reporting order, the person responsible (proprietor, publisher, editor) and/or the relevant body corporate will be guilty of an offence and liable on summary conviction to a fine not exceeding Level 5 on the standard scale (currently £5,000).
The decision of the tribunal
§ Once the hearing is concluded, the tribunal will withdraw to consider its decision. A decision of the tribunal may be taken by a majority. In other words, it is quite possible for the chairman to be overruled by the two lay members (although this rarely happens on a point of law). On occasion, a tribunal hearing may take place with just the chairman and one of the lay members present; in which event, the chairman will have a second or casting vote. However, as was mentioned earlier, a two- member tribunal may only proceed to deal with a complaint (application or reference) with the 'appropriate consent' (that is to say, with the consent given at the beginning of the hearing by such of the parties as are then present in person or represented, or with the consent of each of the parties).
§ An employment tribunal will usually announce its decision, and the reasons on which it is based, at the close of the hearing. In some cases, the decision and/or the reasons for it will be 'reserved' and announced to the parties at a later date. The decision is recorded in summary or extended form in a document signed by the chairman, which is then sent to the Secretary of the Tribunals. The decision will usually be given in summary form unless the case involved the determination of an issue arising under or relating to the Equal Pay Act 1970, the Sex Discrimination Acts 1975 or 1986, or the Race Relations Act 1976. One or other of the parties to the tribunal hearing may request a decision in extended form either orally, at the hearing itself, or in writing (to the Secretary of the Tribunals) not later than 21 days after the date on which the tribunal's summary decision was sent to the parties (see next paragraph). If an employer or employee wishes to appeal to the EAT from a decision of an employment tribunal, he (or she) will need to secure a copy of the tribunal's written decision in its extended form.
§ Once the Secretary to the Tribunals has entered the decision of an employment tribunal in the Register of Applications, Appeals and Decisions, he (or she) will send a copy of that entry to the parties concerned (employer and employee) and to the persons who were entitled to appear and did appear at the hearing. If a case involved allegations of a sexual offence, the Secretary will register the tribunal's decision with such deletions or amendments as may be necessary to conceal the identity of the person or persons who made or were affected by those allegations.
§ An employment tribunal's decision is binding once it has been entered in the Register of Applications, Appeals and Decisions and copies have been sent to the parties concerned. If the tribunal has made an award of compensation (eg, to an employee who has been unfairly dismissed or who has been denied one or other of his statutory rights in employment), that award must be paid within 42 days (but see next paragraph) and directly to the person concerned.
| Note | Awards of compensation will carry simple interest if still unpaid 42 days after the document containing the tribunal's decision is sent to the parties. A notice specifying the date from which interest will begin to accrue, and the rate at which it accrues, will accompany the tribunal's decision. |
Recoupment notices
§ An employer must withhold payment of a tribunal award of compensation until such time as the Department for Work & Pensions (DFWP) has served him with a recoupment notice directing him to deduct a specified sum in respect of any jobseeker's allowance or income support paid to the employee pending the hearing of his application by the employment tribunal (per sections 16 to 18, Employment Tribunals Act 1996 and the Employment Protection (Recoupment of Jobseeker 's Allowance & Income Support) Regulations 1996).
§ A recoupment notice (which may constitute a 'nil return') will be issued either within 21 days of the conclusion of the tribunal hearing, or not later than 21 days after the date on which the written decision of the tribunal was sent to the parties. The amount (if any) specified in the recoupment notice must be deducted from the award of compensation before that award is paid to the employee.
§ An employment tribunal will not normally make an award in respect of any costs or expenses incurred by a party to the proceedings. Win or lose, each will usually be expected to meet his or her own expenses. However, if the tribunal is of the opinion that one of the parties has acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing or conducting the proceedings, it may order that party to pay a specified sum not exceeding £10,000 in respects of part or all of the costs and expenses of the other party, including any travelling costs, subsistence allowance or compensation for loss of earnings (or National Insurance benefit) paid to witnesses who attended the hearing. Such an order may be made even if the originating application has been withdrawn and the case did not proceed to a full hearing.
§ If a tribunal hearing was needlessly adjourned or postponed because of a failure by either the employer or the employee (or, perhaps, a trade union representative) to produce or adduce evidence needed to bring the hearing to a satisfactory conclusion, the tribunal may order the person concerned to pay any costs and expenses incurred as a result of his intransigence or forgetfulness.
§ An appeal on a question of law arising from any decision of an employment tribunal will lie to the Employment Appeal Tribunal (EAT). The EAT will also hear appeals on questions of law or fact arising from any decision of an employment tribunal under section 174 of the Trade Union & Labour Relations (Consolidation) Act 1992 (unreasonable exclusion or expulsion from a trade union) (ibid. section 291).
Appeal procedure
§ An appeal from a decision of an employment tribunal must be served on the EAT within 42 days of the date on which the document recording the decision appealed against was sent to the putative appellant (employee or employer). A copy of the extended written reasons for the tribunal's decision (not the summary) must accompany the Notice of Appeal (which latter must be in, or substantially in, accordance with Form 1 in the Schedule to the Employment Appeal Tribunal Rules 1993). Copies of the Notice of Appeal may be obtained from any local office of the Employment Service.
| Note |
§ Appeals from judgments of the EAT may be brought, with leave, to the High Court, the Court of Appeal and, ultimately, the House of Lords. In some instances, the House of Lords will reserve judgment pending a determination by the European Court of Justice.
Discretion to extend time limits
§ Most complaints (applications or references) to an employment tribunal must be presented within three months of the effective date of termination of an employee's contract of employment (if no longer employed) or within three months of the act or failure to act complained of. The tribunals do have the power to entertain complaints, applications or references presented 'out of time' if, but only if, satisfied that it was not reasonably practicable for such applications to be presented within the prescribed time limits. However, such discretion is not exercised lightly.
§ Once Parts 2 and 3 of the Employment Act 2002 come into force (in late 2003?), the Employment Tribunals Act 1996 will be amended to empower the employment tribunals to postpone the fixing of a time and place for a hearing in order for the proceedings to be settled by conciliation. Proceedings may also be delayed to allow time for the parties to a dispute to follow the then newly-introduced statutory dismissal and disputes procedure (DDP) or statutory grievance procedure (GP) to be imported as an implied term of every contract of employment between an employer and an employee. Once section 31 of the 2002 Act comes into force, the employment tribunals will be required to vary compensatory awards by between 10 and 50 percent for failures (by employers or employees) to use those statutory procedures.
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