Successfully Defending Employment Tribunal Cases (Thorogood Professional Insights)

THOROGOOD PROFESSIONAL INSIGHTS

A SPECIALLY COMMISSIONED REPORT

SUCCESSFULLY DEFENDING EMPLOYMENT TRIBUNAL CASES

Dennis Hunt

IFC

THOROGOOD PROFESSIONAL INSIGHTS

A SPECIALLY COMMISSIONED REPORT

SUCCESSFULLY DEFENDING EMPLOYMENT TRIBUNAL CASES Dennis Hunt

Thorogood Publishing Ltd

Other Thorogood Professional Insights

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Applying the Employment Act 2002 – Crucial Developments for Employers and Employees Audrey Williams

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Contents Preface to the Third Edition .......................................................................1 Introduction..................................................................................................2

1

EMPLOYMENT TRIBUNALS – THEIR FUNCTION AND PURPOSE

4

The court hierarchy .....................................................................................5 Composition of Employment Tribunals ...................................................6 Chairmen of Employment Tribunals .........................................................7 Lay members ................................................................................................8 Chairmen only tribunal hearings...............................................................8 Chairman and one member tribunals .....................................................10 Tribunal rules, regulations and procedures............................................10 Summary.....................................................................................................11

2

TYPES OF CLAIM BROUGHT BEFORE THE EMPLOYMENT TRIBUNAL

13

Reasons for a claim....................................................................................14 Constructive dismissal ..............................................................................21 Redundancy................................................................................................22 Trade union matters ..................................................................................22 Health and safety ......................................................................................22 Transfers of undertakings.........................................................................22 Maternity and paternity rights.................................................................23 Sex discrimination .....................................................................................23 Sexual harassment.....................................................................................24 Equal pay ....................................................................................................24 Racial discrimination.................................................................................24 Disability discrimination ...........................................................................24

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CONTENTS

Unlawful deductions from wages ............................................................25 Statutory rights ..........................................................................................25 Wrongful dismissal and breach of contract ...........................................26

3

TRIBUNAL JURISDICTION

27

Jurisdictional limits....................................................................................28 Challenging jurisdiction............................................................................29 Preliminary hearings .................................................................................29 Case management .....................................................................................30 Summary.....................................................................................................31

4

THE ORIGINATING APPLICATION

32

Commencement of a claim .......................................................................33 Reviewing the originating application (ET1) ..........................................35 Responding to the claim (ET3) .................................................................39 Pleading ‘in the alternative’ ......................................................................43 Consequences of not entering a notice of appearance (ET3) ...............44 Risk of default judgements .......................................................................45 Amending the ET3.....................................................................................46 Summary.....................................................................................................46

5

PREPARING THE CASE

48

The initial assessment................................................................................49 Further and better particulars and discovery of documents................51 Further assessment ...................................................................................51 Witnesses....................................................................................................52 Developing the chronology .....................................................................55 Deciding strategy and tactics ...................................................................56 Summary.....................................................................................................58

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CONTENTS

6

NEGOTIATING SETTLEMENTS AND DEALING WITH ACAS

61

The role of ACAS.......................................................................................62 COT3 wording............................................................................................66 Compromise agreements..........................................................................66 Withdrawals ...............................................................................................68 ACAS arbitration.......................................................................................69 Preparing for the arbitration hearing .....................................................70 The hearing ................................................................................................71 Making awards where appropriate .........................................................71 Summary ....................................................................................................72

7

INTERLOCUTORY ORDERS, HEARINGS AND PREVIEWS

74

Preliminary hearings .................................................................................75 Pre-hearing reviews ..................................................................................75 Directions....................................................................................................78 Further and better particulars .................................................................80 Discovery and inspection of documents .................................................81 Witness orders ...........................................................................................81 Striking out.................................................................................................82 Summary.....................................................................................................82

8

PREPARING FOR THE HEARING

84

The first steps .............................................................................................85 Preparing witnesses and witness statements .........................................86 Documentary evidence..............................................................................89 Written evidence and the ‘bundle’...........................................................89 Researching legal precedents...................................................................92 Summary.....................................................................................................93

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CONTENTS

9

THE HEARING

95

Preliminary matters ...................................................................................99 Opening statements.................................................................................100 Calling witnesses and evidence in chief................................................101 Cross-examination...................................................................................105 Re-examination ........................................................................................108 The closing address .................................................................................108 General hints ............................................................................................111 Summary...................................................................................................111

10

THE DECISION

115

Costs..........................................................................................................116 Reviewing the decision ...........................................................................118 Remedy hearings .....................................................................................119 Summary...................................................................................................121

11

APPEALS

122

Summary...................................................................................................124

12

CONCLUSION

125

13

SUMMARY OF CHANGES INTRODUCED BY THE EMPLOYMENT ACT 2002

129

Commencement of a claim .....................................................................130 Default judgments....................................................................................131 Case management ...................................................................................131 ACAS conciliation ...................................................................................132 Directions hearings .................................................................................132 Costs..........................................................................................................133

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CONTENTS

APPENDICES

134

APPENDIX 1 Calculating awards ................................................................................135 Basic award ..............................................................................................135 Compensatory award..............................................................................136 Duty to mitigate loss................................................................................137 Additional awards ...................................................................................137 Interim relief.............................................................................................138 Injury to feelings ......................................................................................138 Aggravated damages ..............................................................................139 APPENDIX 2 Useful addresses ....................................................................................140

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Preface to the Third Edition It is almost three years since this report was first published. Since that time legislation and Statutory Instruments governing the Employment Tribunal System have continued to be introduced or amended. Whilst the report was written with the intention of keeping it as free of legislative references as possible, the recent changes mean that sections of it needed rewriting and adding to to ensure that the report continues to do the job for which it was intended. The biggest change to the Employment Tribunal system since the report was originally published has been the Employment Act 2002. The changes this Act brings to the Employment Tribunals system are significant. This 2005 edition of the report includes all of the changes introduced by this Act. In introducing the Act the Minister declared that its aim was to reduce the volume of Employment Tribunals by between 30,000 and 40,000 per year. To achieve this the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 declare the overriding objectives as being to enable tribunals to deal with cases justly, so far as is practicable to: •

ensure that the parties are on an equal footing

•

save expense

•

deal with cases in ways which are proportionate to the complexity of the issues and

•

ensure that matters are dealt with expeditiously and fairly.

Only time will tell if these aims and objectives will be met. Dennis Hunt, January 2005

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Introduction I attended my first Employment Tribunal in the mid ‘70s when I was the Personnel Manager of the Standard Triumph car manufacturing company in Coventry – part of the now defunct British Leyland empire. I recall that the Engineering Employers Federation (EEF) represented us at the Employment Tribunal. We had dismissed a maverick shop steward who had smuggled a film crew onto the Canley site in Coventry during the night shift to film a bout of industrial action that was taking place at the time. As much to the annoyance of his trade union colleagues as management. As a result, the trade unions on the site did not contest the dismissal that followed a lengthy investigation. Very quickly after the dismissal an application for a hearing at Employment Tribunal was lodged by the ex-shop steward. This was a very important case for the company to win. Our reputation was publicly on the line. I had become so involved with the details of all of the events that had lead to the dismissal that I had difficulty in being objective about the case. An experience which I am sure has been mirrored by many who read this Briefing. As a result I learnt a valuable lesson in Employment Tribunal handling: separate emotion from fact when representing a case you have been personally involved in. The day of the hearing duly arrived and both sides presented all of their evidence. Fortunately we won the decision. A source of tremendous satisfaction to all the members of the management team. This was my first experience of any kind of court action and I remember thinking how far removed it was from the daily cut and thrust of industrial relations to which I was exposed every day. The work that went on prior to the case coming before the Tribunal was so important. Ultimately the case hinged on the preparation and clear presentation of the facts. Since then I have handled more cases than I can recall. My last position prior to moving into freelance consultancy was as the Chairman of an organisation that handled over 250 Employment Tribunals at any one time. Each month we disposed of, and took on between 30 and 35 Employment Tribunal cases. My colleagues and I regularly attended all of the regional offices of the Employment Tribunals across the country. The experience I gained in carrying out this work lead to the writing of this Briefing. I have written it as a practitioner for the assistance of those in a personnel or management role, who find themselves handling an Employment Tribunal claim, perhaps for the first time. I am not a lawyer and I have no legal training. However, I have not

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INTRODUCTION

found this to be a handicap at any time in the Employment Tribunal. Without doubt this is a different matter if cases proceed to the Employment Appeal Tribunal and beyond. But I have always been encouraged by the fact that two thirds of Employment Tribunal panels are lay members, men and women chosen for their experience and practical knowledge of the workings of British industry and commerce. I hope that those who turn to the pages of this Briefing in an attempt to ensure that they do the best job possible in representing their client or their employer, will find guidance and assistance that is of real value to them. Finally, I would point out that this is not a Law Briefing. If it falls into any category it would best be defined as a ‘How to’ Briefing. The law governing employment legislation is a ‘moving target’. To keep up-to-date with employment legislation it is essential that you subscribe to one of the many publications that circulate updates or subscribe to one of the fast growing army of websites that make accessing information on this complex subject much easier. Wherever possible I have kept references to specific Acts of Parliament to a minimum. Nor is the section dealing with matters that can be brought before a tribunal intended to be a definitive list of all claims that can be brought. I have set down a broad sweep of the possible areas of claim as these exist as this Briefing goes to publication. It is vital that any professional practitioner in this area of expertise keeps their eyes and ears open and they read as widely as they can on the subject to ensure that they keep as up-to-date as possible. I wish you luck. Dennis D Hunt

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Chapter 1 Employment Tribunals – their function and purpose The court hierarchy ...............................................................................5 Composition of Employment Tribunals .............................................6 Chairmen of Employment Tribunals ...................................................7 Lay members ..........................................................................................8 Chairmen only tribunal hearings.........................................................8 Chairman and one member tribunals ...............................................10 Tribunal rules, regulations and procedures......................................10 Summary ..............................................................................................11

Chapter 1 Employment Tribunals – their function and purpose Employment Tribunals, previously named Industrial Tribunals, were originally created under the Employment Training Act of 1964 to hear Appeals against training levy assessments imposed by Employment Training Boards. Their jurisdiction now extends to embrace numerous claims arising from a number of Acts of Parliament and Statutory Instruments. It is not my intention to list these, as this is not the purpose of this Briefing and this information is easily available from a number of other sources to those students who wish to explore them. The idea underlying the setting up of Employment Tribunals was to provide a cheap, informal and speedy means of adjudicating in disputes between employer and employee. The intention was to keep legalism to a minimum. Regrettably, in this regard, this intention has failed. Compared with other courts, Employment Tribunals still operate relatively cheaply. However, they have been forced over time to give way to a greater degree of formality and legalism. This has been brought about for a number of reasons, not least among them is the law in the area in which they operate, which has become increasingly complex and regularly subject to judicial appeal. Because they are judicial bodies Employment Tribunals have been expected to adhere to the principles of natural justice. Inevitably this has led them to introduce a greater degree of formality into their proceedings than was originally intended.

The court hierarchy In the vast majority of cases Employment Tribunals are the bottom rung in a system of courts designed to resolve disputes between employers and employees. Or in some cases between a trade union and a member. ET’s have the status of inferior courts and on application, the Divisional Court has jurisdiction to treat abuse by any party as contempt of court and to commit offenders to prison

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1 EMPLOYMENT TRIBUNALS – THEIR FUNCTION AND PURPOSE

Appeals from Employment Tribunals lie with the Employment Appeal Tribunal, which has the status of the High Court, although its jurisdiction is almost entirely appellate and rigidly defined by statute. The Employment Appeal Tribunal hears appeals on questions of law from tribunal decisions. Appeals from the Employment Appeal Tribunal are to the Court of Appeal in England and the Court of Session (Inner House) in Scotland. In either case, only on a point of law and subject to leave to appeal being granted. The final stage in the appeal process, again only with leave, is to the House of Lords. Certain cases involving the interpretation and applicability of European law may require a reference to the European Court of Justice. Such cases arise particularly in equal pay and sex discrimination claims. In fact some of the most significant changes to employment law over the past five years have been brought about by such references. The Employment Appeal Tribunal is a ‘superior court of record’ and as such its decisions carry a binding authority on Employment Tribunals and create ‘precedents’ which should be followed by them. Precedents cited in Employment Tribunals must, however, be treated with caution, as explained later in this Briefing. The Employment Appeal Tribunal cannot overrule their previous decisions. All that they can do in exceptional circumstances is to decline to follow them. Decisions of the Court of Appeal are binding on the Employment Appeal Tribunal in England and Wales whilst decisions of the Inner House of the Court of Session are binding in Scotland.

Composition of Employment Tribunals Administrative system Presiding over the Employment Tribunals system as a whole is the President of the Employment Tribunals for England and Wales who is appointed by the Lord Chancellor and must have the same qualifications as a tribunal Chairman. The focus of the administrative system for tribunals is the Central Office of the Employment Tribunals (COET) which for England and Wales is situated in Bury St. Edmunds, Suffolk. Currently there are also currently 11 regional offices of the Employment Tribunals (ROETs) in England and Wales. One of the Chairmen of each is appointed by

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1 EMPLOYMENT TRIBUNALS – THEIR FUNCTION AND PURPOSE

the President to serve as Regional Chairman. The function of the Regional Chairman is to be responsible for the administration of justice by tribunals in the area specified by the President. There are nine Offices of the Employment Tribunals (OETs). These are branches of specific ROETs in which hearings take place but which are administered by the relevant ROET under the auspices of the regional Chairman. There is a separate President in Scotland who is appointed for a renewable five year period by the Lord President of the Court of Session. Scotland has its own COET situated in Glasgow and three offices of the tribunals (OETs not ROETs as in England and Wales) apart from the COET.

Chairmen of Employment Tribunals Any public hearings before a full tribunal must be before a presiding Chairman, who must be a barrister or solicitor of a least seven years standing, and usually, but not always, two lay members drawn one from either side of industry. The exceptions to the rule that a tribunal must be fully composed of a Chairman and lay members is outlined in the section entitled ‘ Chairman only tribunal hearings’ (see below). The Chairman’s function at the hearing is to preside over the proceedings; to advise the lay members on the relevant law and its application to the facts of the case; and to give the reasons for the tribunal’s decision – usually first orally and then more fully later in written form. All Chairmen, be they full or parttime, are appointed by the Lord Chancellor and may continue to serve until the age of 70. No full-time Chairman is appointed without first having served parttime. When sitting with lay members it is important to note that a Chairman is not by virtue of his or her expertise, in a privileged position. The Chairman’s vote is equal to that of his or her lay colleagues. He or she can be outvoted. One important aspect of the full-time Chairman’s role is to deal with incidental matters which arise as the parties get their case into shape. A Chairman acting alone on the basis of the ‘pleadings’ and correspondence relevant to the case almost always deals with these – termed interlocutory matters – alone. The Employment Act 2002 significantly increased the powers of the Chairman with the express intention of improving case management to ensure that claims are dealt with as expeditiously as possible.

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1 EMPLOYMENT TRIBUNALS – THEIR FUNCTION AND PURPOSE

Lay members The lay members are appointed to serve by the Secretary of State for Trade and Industry after consultation with a number of organisations of employers and employees, of which the CBI and the TUC are the most prominent. They are people with special knowledge and experience of commerce and industry and are expected to bring their practical expertise to bear at hearings. In 2000/1 there were 1,908 lay members.

Chairmen only tribunal hearings The Regulations allow for Chairmen to sit alone to hear certain types of cases. In the main these are: •

to make an order dismissing the proceedings where the application has been withdrawn by the claimant

•

to decide an application in accordance with the written agreement of the parties

•

in certain circumstances, to strike out cases of a frivolous or vexatious nature

•

to do any act required or authorised under the rules of the tribunal, subject however to three specific exceptions. These are: 1.

the hearing of an Originating Application

2.

certain matters relating to the hearing of the application and to the tribunal’s decision

3.

decisions relating to the review or revocation of the tribunal’s decision in respect of the matters on which only a full tribunal is competent to make decisions.

Note: This latter item can only be fully understood by a reading of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. In certain circumstances, a Chairman sitting alone can also consider the matter of costs. This depends on whether the issue of costs concerns the Originating Application, or the full hearing. In the former, the Chairman can consider the matter, whilst in the latter, it is normal for the full tribunal to consider the question of costs.

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1 EMPLOYMENT TRIBUNALS – THEIR FUNCTION AND PURPOSE

The rules allow a Chairman to decide upon certain substantive matters by themselves, viz: •

Applications for interim relief, i.e. immediate continuation of employment following alleged dismissals for trade union membership/ activities or for reasons relating to health and safety.

•

A claim for various debts on insolvency of the employer.

•

A complaint relating to unauthorised deductions from wages.

•

Proceedings in wrongful dismissal or other contractual claims over which tribunals have been given jurisdiction.

•

Proceedings in which parties have consented in writing to the Chairman sitting alone.

•

Where a claimant has given notice withdrawing his or her case.

•

Proceedings where the person(s) against whom the proceedings are brought, does not, or ceases to, contest the case.

Default Judgements A new rule: rule 8 (Constitution and Rules of Procedure) 2004 (C&RP 2004)), introduces a system of default judgements under which a tribunal chairman may, in certain circumstances, determine a case without a hearing if he or she considers it appropriate to do so. Such a judgement may decide liability alone, or liability and remedy – (new rule 8(3)) Note: A chairman may issue a default judgement where a respondent has failed to submit a response within the time limit, or the respondent has submitted a response which failed to meet the pre-acceptance conditions. However, a default judgement will not be issued where the respondent has applied, under new rule 34 (C&R.P. 2004), for a review of the tribunal’s decision not to accept its response. Or where the claimant has written to the tribunal indicating either that they do not want a default judgement to be issued or that the claim has been settled – (new rule 8(2)) (C&RP 2004).

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1 EMPLOYMENT TRIBUNALS – THEIR FUNCTION AND PURPOSE

Chairman and one member tribunals In circumstances where a tribunal must be comprised of a Chairman and lay members, it is possible for only one lay member to sit, but only where the parties have given their prior consent to such a course. The most common circumstances that give rise to such an event are where a lay member is unable to attend due to personal circumstances, or becomes indisposed part way through a hearing. Tribunals can only proceed in such circumstances with the consent of the parties. A refusal to give consent would lead a tribunal to be invalidly constituted.

Tribunal rules, regulations and procedures The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 SI 2004/1861 came into force on 1st October 2004, and introduced new procedural rules for Employment Tribunals. The new rules are contained in Schedule 1 to the Regulations and replace the previous rules, which were found in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2002 SI 2001/1171. The new regulations unify the procedural rules for tribunals across both England/Wales and Scotland. The overriding objective of the rules as set out in the regulations is to enable tribunals to deal with cases justly. This includes, so far as is practicable: •

ensuring that parties are on an equal footing

•

saving expense

•

dealing with each case in ways which are proportionate to the complexity of the issues, and

•

desiring that each case is dealt with expeditiously and fairly.

Note: All parties are under a duty to assist the tribunal to further these overriding objectives. The regulations determine the rules of procedure that apply in all cases, including those that apply to equal value claims, levy appeals, improvement and prohibition notices appeals and non-discrimination notices appeals. Tribunals are tightly regulated through these rules, however, it is important to bear in mind that the tribunals were originally set up to provide accessible, speedy and effective administration of justice. One result of this is that there is a requirement on all Chairmen to ensure that unrepresented parties have the law and procedure carefully explained to them so they may fully participate in all proceedings in which they are involved.

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1 EMPLOYMENT TRIBUNALS – THEIR FUNCTION AND PURPOSE

Summary •

Employment Tribunals were originally formed to hear Appeals against training levy assessments.

•

The intention behind Employment Tribunals was to provide a relatively cheap, informal and speedy method of adjudicating in employment disputes.

•

The Central Office of Employment Tribunals (COET) is located in Bury St Edmunds.

•

There are 11 regional offices of Employment Tribunals (ROETs).

•

There are nine Offices of Employment Tribunals (OETs).

•

The President of the Employment Tribunals is the most senior person in the hierarchy.

•

The Regional Chairmen of the Employment Tribunals report to the President.

•

The Chairmen of the Employment Tribunals, both full and parttime, report to the Regional Chairman.

•

A Chairman must be a barrister or solicitor of at least seven years standing.

•

The Chairman’s function is to preside over the proceedings and advise lay members on the relevant law and its application to the matters in hand.

•

The Chairman must also give and record the reasons for all tribunal decisions.

•

It is usual for a Chairman to serve first as a part-time Chair before being appointed to the post of full-time Chair.

•

Lay members are appointed by the Secretary of State.

•

Lay members are drawn from the ranks of managers and trade union officers throughout industry and commerce.

•

Chairman-only Employment Tribunals in the main deal with applications for interim relief, claims for various debts arising from the insolvency of employers, claims brought under the Wages Act, wrongful dismissal proceedings and other

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1 EMPLOYMENT TRIBUNALS – THEIR FUNCTION AND PURPOSE

contractual claims. They also chair proceedings where the parties have given their consent to a Chairman sitting alone. They can handle matters where a claimant has given notice withdrawing their case, or where the party against whom the proceedings have been brought does not, or ceases to, contest the case. In certain circumstances they have the power to strike out cases of a frivolous or vexatious nature. •

Chairmen can sit with one panel member only where the parties to the case have given their consent.

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Chapter 2 Types of claim brought before the Employment Tribunal Reasons for a claim .............................................................................14 Constructive dismissal ........................................................................21 Redundancy..........................................................................................22 Trade union matters ............................................................................22 Health and safety ................................................................................22 Transfers of undertakings...................................................................22 Maternity and paternity rights...........................................................23 Sex discrimination ...............................................................................23 Sexual harassment...............................................................................24 Equal pay ..............................................................................................24 Racial discrimination...........................................................................24 Disability discrimination.....................................................................24 Unlawful deductions from wages ......................................................25 Statutory rights....................................................................................25 Wrongful dismissal and breach of contract .....................................26

Chapter 2 Types of claim brought before the Employment Tribunal

Reasons for a claim The vast majority of claims registered at COET are for Unfair Dismissal complaints or for redundancy payments, or for both together. A further substantial part of the tribunal’s caseload are claims under the Wages Act. The current jurisdiction list is set out below as shown on the official government Employment Tribunal website at the time of going to print: www.employmenttribunal.gov.uk

Jurisdiction list Jurisdiction

Originating Legislation

Suffer a detriment and/or dismissal resulting

ERA 1999

from a failure to allow an employee to be

Sec 10 – 15

accompanied or to accompany a fellow employee at a disciplinary/grievance hearing Application for a declaration that the inclusion

TURER 1993

of discriminatory terms/rules within certain

Sec 32

agreements or rules causes the aforesaid to be invalid Application by an employee, their representative

TULR (C)A 1992

or trade union for a protective award as a result

Sec 189

of an employer’s failure to consult over a redundancy situation Breach of Contract

ETA 1996 Sec 3

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2 TYPES OF CLAIM BROUGHT BEFORE THE EMPLOYMENT TRIBUNAL

Jurisdiction

Originating Legislation

Failure of the employer to consult with an

SSPA 1975

employee representative or trade union about a proposed contracting out of a pension scheme Suffered a detriment, discrimination and/or

DDA 1995

dismissal on grounds of disability or failure of

Sec 4(2), 4(1) & 6

employer to make reasonable adjustments Suffered a detriment and/or dismissal resulting

ERA 1996

from requiring time off for other (non-work but

Sec 46, 47, 58, 61 &

not Health and Safety) duties, study, training or

63A-C

seeking work Discrimination or victimisation on grounds of

E E (Religion or Belief)

religion or belief

Regs 2003

Discrimination or victimisation on grounds of

E E (Sexual Orientation)

sexual orientation

Regs 2003

Application by the Secretary of State for Trade

DCOA 1994

& Industry to prohibit a person from running an

Sec 35

Employment Agency Failure to provide equal pay for equal

EPA 1970

value work

Sec 2(1)

Failure of the employer to consult with an

TUPE 1981

employee rep. or trade union about a proposed

Sec 10, 10a & 11(1)

transfer Suffer a detriment and/or dismissal for claiming

FWR 2002

under the flexible working regulations or be

Regs 6, 14.2, 14.4 & 16.3

subject to a breach of procedure Application by an employee that an employer

TULR(C)A 1992

has failed to pay a protected award as ordered

Sec 192

by a tribunal Failure to pay remuneration whilst suspended

ERA 1996 Sec 68

from work for Health and Safety reasons whilst pregnant or on mat. leave

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2 TYPES OF CLAIM BROUGHT BEFORE THE EMPLOYMENT TRIBUNAL

Jurisdiction

Originating Legislation

Failure to provide a written statement of terms

ERA 1996

and conditions and any subsequent changes to

Sec 1 & 4

those terms Suffered less favourable treatment and/or

FTE 2002

dismissal as a fixed term employee, than a full

Reg 7

time employee Failure to allow time off for trade union

TULR (CA) 1992

activities or duties, for ante-natal care or for

Sec 168 – 171

public duties

ERA 1996 Sec 50, 51, 55-56

Failure to provide a guarantee payment

ERA 1996 Sec 28

Failure to pay remuneration whilst suspended

ERA 1996

for medical reasons

Sec 64

Failure to allow time off to seek work during a

ERA 1996

redundancy situation

Sec 52 & 53

Failure of an employer to comply with an award

TUPE 1981

by a tribunal following a finding that the

Sec 11 (5)

employer had previously failed to consult about a proposed transfer of an undertaking Failure to provide a written pay statement or an

ERA 1996

adequate pay statement

Sec 10 & 11

Failure to provide a written statement of reasons

ERA 1996

for dismissal or the contents of the statement are

Sec 92 & 93

disputed Appeal against an enforcement, improvement

NESE 1994 Reg 6

or prohibition notice imposed by the HSE or

or HSWA 1974 Sec 24(2)

Environmental Health Inspector, or by the

or COMAH 1999 Sec 18

Environment Agency Failure to pay for or allow time off to carry out

EPA 1970

Safety Rep duties or undertake training

Sec 2 (1)

Suffer a detriment, dismissal or redundancy

ERA 1996

for health and safety reasons

Sec 44, 100 & 136

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2 TYPES OF CLAIM BROUGHT BEFORE THE EMPLOYMENT TRIBUNAL

Jurisdiction

Originating Legislation

Application for interim relief

ERA 1996 Sec 128 or TULR (C)A 1992 Sec 161

Failure by the SOS to make an insolvency

ERA 1996

payment in lieu of wages and/or redundancy

Sec 182

Appeal against the levy assessment of an

Relevant Industrial

Industrial Training Board

Training Levy Order – either Construction or Engineering Construction Board

Loss of office as a result of the reorganisation of

Miscellaneous statutes

a statutory body Suffer a detriment and/or dismissal on grounds

ERA 1996

of pregnancy, child birth or maternity

Sec 48, 74c, 79, 92(4) & 99 MPL 2002 Reg 18

Appeal against an enforcement or penalty notice

NMWA 1998

issued by the Inland Revenue

Sec 22

Suffer a detriment and/or dismissal related to

ERA 1996

failure to pay the minimum wage or allow access

Sec 104A

to records Appeal against a non-discrimination notice

DRC 1999 Sch 3 or

issued by either the CRE, DRC or EOC

RRA 1976 Sec 59 or SDA 1975 Sec 68

Failure of the employer to prevent unauthorised

TURER 1993

or excessive deductions in the form of union

Sec 15(68)

subscriptions Suffered a detriment and/or dismissal due to

ERA 1996

exercising rights under the Public Interest

Sec 47B & 103A

Disclosure Act Suffer a detriment and/or dismissal due to

ERA 1996 Sec

requesting or taking paternity or adoption leave

57A,EReIA 1999

or time off to assist a dependant

Sch 4, Sec 76 & 80 MPL 1999 Regs 13-16 PAL 2002 Sec 28-29

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2 TYPES OF CLAIM BROUGHT BEFORE THE EMPLOYMENT TRIBUNAL

Jurisdiction

Originating Legislation

Suffer less favourable treatment and/or

PTW 2000

dismissal as a result of being a part time

Reg 5-8

employee by comparison to a full time employee Failure to pay a redundancy payment

ERA 1996 Sec 163-164

Failure of the SOS to pay a redundancy payment

ERA 1996

following an application to the NI fund

Sec 166

Discrimination or victimisation on grounds of

RRA 1976

race or ethnic origin

Sec 54 & 64

Suffer a detriment and/or dismissal for refusing

ERA 1996

to work on a Sunday

Sec 44, 45, 101

Discrimination or victimisation on grounds of

SDA 1975

sex, marriage or transgender

Sec 6 & 10 SDA 1986 Sec 4c

Suffered less favourable treatment and/or

FTE

dismissal as a temp. employee than a full time

Regs 2002

employee Suffer discrimination in obtaining employment

TULR (C)A 1992

due to membership or not-membership of a

Sec 137

trade union Suffer a detriment and/or dismissal relating to

TULR (CA) 1992

being, not being or proposing to become a trade

Sec 46, 66, 146, 152

union member

& 174

Suffer discrimination in obtaining the services of

TULR (C)A 1992

an employment agency due to membership or

Sec 138

non-membership of a trade union Suffered a detriment and/or dismissal due to

TCA 2002

exercising rights under the Tax Credits Act

Sec 27 & Sch 1

Unfair dismissal after exercising or claiming a

ERA 1996

statutory right

Sec 104

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2 TYPES OF CLAIM BROUGHT BEFORE THE EMPLOYMENT TRIBUNAL

Jurisdiction

Originating Legislation

Unfair dismissal on grounds of capability,

ERA 1996 Sec 94 or

conduct or some other general reason including

TUPE 1981 Reg 8

the result of a transfer of an undertaking Unfair dismissal in connection to a lock out,

TULR 1992

strike or other industrial action

Sec 238a

Failure of employer to pay or unauthorised

ERA 1996 Sec 13-27 or

deductions have been made

CEC 1975 Reg 42

Failure to limit weekly or night working time, or

WTR 1998

to ensure rest breaks or annual leave entitlement

Regs 4, 6, 10, 12-17

Legislation key Legislation Abbreviation

Full Title

CEC 1975

Colleges of Education (Compensation) Regulations 1975

COMAH 1999

Control of Major Accident Hazards Regulations 1999

DCOA 1994

Deregulation and Contracting Out Act 1994

DDA 1995

Disability Discrimination Act 1995

DRC 1999

Disability Rights Commission Act 1999

EE (Religion or Belief)

Employment Equality (Religion or Belief)

Regs 2003

Regulations 2003

EE (Sexual Orientation)

Employment Equality (Sexual Orientation)

Regs 2003

Regulations 2003

EPA 1970

Equal Pay Act 1970

ERA 1996

Employment Rights Act 1996

ERelA1999

Employment Relations Act 1999

ETA 1996

Employment (Industrial) Tribunals Act 1996

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2 TYPES OF CLAIM BROUGHT BEFORE THE EMPLOYMENT TRIBUNAL

Legislation Abbreviation

Full Title

FTE 2002

Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002

FWR 2002

Flexible Working (Procedural Requirements) Regulations 2002 and Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002

HSCE 1996

Health and Safety Consultation with Employee Regulations 1996

HSWA 1974

Health and Safety at Work Act 1974

MPL 1999

Maternity and Parental Leave Regulations 1999

MPL 2002

Maternity and Parental Leave (Amendment) Regulations 2002

NESE 1994

Notification of Existing Substances (Enforcement) Regulations 1994

NMWA 1998

National Minimum Wage Act 1998

PAL 2002

Paternity and Adoption Leave Regulations 2002

PIDA 1998

Public Interest Disclosure Act 1998

PTW 2000

Part Time Worker (Prevention of Less Favourable Treatment) Regulations 2000

RRA 1976

Race Relations Act 1976

SDA 1975

Sex Discrimination Act 1975

SRSCR 1977

Safety Representatives and Safety Committees Regulations 1977

SSPA 1975

Social Security Pensions Act 1975

STA 1994

Sunday Trading Act 1994

TCA 2002

Tax Credits Act 2002

TULR(C) 1992

Trade Union and Labour Relations (Consolidation) Act 1992

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2 TYPES OF CLAIM BROUGHT BEFORE THE EMPLOYMENT TRIBUNAL

Legislation Abbreviation

Full Title

TUPE 1981

Transfer of Undertakings (Protection of Employment) Regulations 1981

TURER 1993

Trade Union Reform and Employment Rights Act 1993

WTR 1998

Working Time Regulations 1998

Art = (Article) Par = (Part) Reg = (Regulation) Sec = (Section) Sch = (Schedule)

Constructive dismissal The term ‘constructive dismissal’ is not used in legislation but has grown to cover circumstances in which an employee resigns claiming that the action/s of their employer left them with no other option. It may be that a term of their contract of employment has been significantly changed. Or there may have been a breakdown in the fundamental trust and confidence necessary for the proper ongoing relationship necessary for the continuation of a contract of employment. Be that as it may, the term is now in common usage. In a sense ‘constructive dismissal’ can be considered as the reverse of dismissal on the grounds of gross misconduct. Where gross misconduct can be proven there is no need to give notice to the employee. Their actions are deemed to have been so outrageous as to have destroyed the contract of employment. No employee who intended to continue to be bound by the contract would have acted thus. This is why the term ‘gross misconduct’ covers issues such as theft, assault, sabotage etc, all very serious acts. As the employee has demonstrated that they no longer intend to be bound by the contract, they release the employer from any obligation to give notice. The severity of the breach of contract has demonstrated that it is ended. ‘Constructive dismissal’ is similar. The actions of the employer must be so outrageous as to enable the employee to conclude that the employer does not intend to continue to be bound by the contract, thus enabling the employee to ‘turn on their heel’ and walk away. To succeed in a claim of ‘constructive dismissal’ an ex-employee must first satisfy the tribunal that a de-facto dismissal did indeed take place. When this has been achieved the tribunal can then go on to consider the fairness or otherwise of

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2 TYPES OF CLAIM BROUGHT BEFORE THE EMPLOYMENT TRIBUNAL

the dismissal. If the tribunal is not satisfied that the actions of the employer were severe enough to warrant the employee concluding that the contract was over, then the case will not proceed.

Redundancy Redundancy covers circumstances where the employee loses their job because of a reduction or cessation of the type or kind of work they were employed to do. The rights given to employees in such circumstances cover whether or not their job was redundant in the first instance. Hence the potential for a claim of Unfair Dismissal and Unfair Selection. There is the right of recognised trade unions to be consulted prior to the implementation of any redundancy, and the right to receive redundancy payments upon termination of employment. A number of Acts of Parliament establish these rights.

Trade union matters Numerous Acts of Parliament cover disputes over trade union activities by employees.

Health and safety Where organisations fail to meet the required standards of Health and Safety as laid down in the relevant Acts of Parliament, powers exist to issue improvement or prohibition notices. The person/s on whom such a notice is served has the right to appeal to an Employment Tribunal.

Transfers of undertakings A significant body of case law has grown up around the Transfer of Undertakings (Protection of Employment) Regulations 1981, as amended. Simply stated this piece of legislation protects the rights of employees whose organisation is involved in a sale or transfer.

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2 TYPES OF CLAIM BROUGHT BEFORE THE EMPLOYMENT TRIBUNAL

The ‘bottom line’ is that the employee’s contracts of employment and all acquired rights transfer with the organisation. Whilst this does not stop the new owner of the business from making changes to contracts of employment, this can only be done on economic, technical or organisational grounds, and then only after complying with all consultation requirements. The TUPE Regulations have caused major problems for those businesses whose purpose is to provide contracted out services such as cleaning, catering and security. Whilst proposals are being discussed in Europe to ease these problems the resolution of them still seems a long way off.

Maternity and paternity rights The concept of maternity rights was first introduced in the Employment Protection Act 1975. They have been further defined by subsequent legislation. Paternity Rights and Adoption Leave Rights were introduced by the Employment Act 2002

Sex discrimination The Sex Discrimination Act 1975 defined sex discrimination and created the Equal Opportunities Commission (EOC) and moves are currently afoot to create a Commission for Equality and Human Rights to embrace the policing of all forms of discrimination. The SDA was amended in 1986 and subsequently in 1989, but the main provisions laid down in the 1975 Act are, on the whole, unaffected by the later changes. The legislation defines two types of discrimination, direct and indirect: •

Direct discrimination means that a person has been treated less favourably on the grounds of their sex.

•

Indirect discrimination means that the person is less likely to be able to comply with conditions imposed than members of the opposite sex.

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2 TYPES OF CLAIM BROUGHT BEFORE THE EMPLOYMENT TRIBUNAL

Sexual harassment As with ‘constructive dismissal’ such behaviour is not actually defined by law, but since 1985 when the first successful claim of sexual harassment was won, any action complained of can be challenged.

Equal pay The Equal Pay Act of 1970 was intended to deal with discrimination in rates of pay and other contractual terms. The Act states that it is unlawful to pay different rates of pay or benefits to employees on the grounds of their sex. Equal pay claims are one of the most difficult of all claims, both to bring and to defend, at Employment Tribunals. Organisations faced with such claims are advised to seek professional assistance at an early stage of the claim to avoid, wherever possible, lengthy and protracted proceedings.

Racial discrimination The provisions of the Race Relations Act 1976 are similar in format and substance to the Sex Discrimination Act with direct and indirect discrimination outlawed. Just as the EOC was established by the Sex Discrimination Act, so the Commission for Racial Equality (CRE) came into being under the Race Relations Act (RRA) (see proposed changes detailed under Sex Discrimination). As a result of the RRA it became unlawful to discriminate against a person on racial grounds by treating that person less favourably because of their ethnic origin or racial group.

Disability discrimination This is similar to sex and race discrimination in that it is unlawful to discriminate without good reason against a disabled employee or job claimant. The final tranche of disability legislation that came into force on 1st October 2004 brought in a new definition of discrimination by introducing the definition of ‘direct discrimination’. This involves treating a disabled person less favourably than another whose relevant circumstances are the same as, or not materially different

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2 TYPES OF CLAIM BROUGHT BEFORE THE EMPLOYMENT TRIBUNAL

from, those of a disabled person. The new changes also removed the exemptions previously enjoyed by smaller enterprises employing less than 15 employees. The revised disability regulations make clear that the definition of ‘dismissal’ now includes ‘constructive’ dismissal.

Unlawful deductions from wages Claims for unauthorised deductions from wages prior to 1986 had to be taken before a civil court. The introduction of the Wages Act in 1986 gave employees the right to to bring such claims before an Employment Tribunal.

Statutory rights The Trade Union Reform and Employment Rights Act 1993 (TURER) gave real teeth to statutory rights for the first time. Prior to this piece of legislation, an employee who exercised these rights and who had less than one years service was not protected from dismissal if their employer took exception to this. TURER made it unfair for an employer to dismiss an employee who is exercising a statutory right. Furthermore, the employee does not actually have to have the right; merely to believe that the right exists will be sufficient. These statutory rights include the right: •

not to be discriminated against on the grounds of sex, race, religion or trade union activities during employment

•

to receive a written statement of terms and conditions within eight weeks of commencing employment

•

to receive itemised pay statements

•

to belong, or not to belong, to a trade union

•

to minimum guaranteed payments in the event of layoff

•

to Statutory Sick Pay

•

to Statutory Maternity Pay

•

to Statutory Paternity leave

•

to Adoption Leave

•

to Statutory Redundancy Pay

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2 TYPES OF CLAIM BROUGHT BEFORE THE EMPLOYMENT TRIBUNAL

•

to minimum periods of notice

•

to equal pay with members of the opposite sex

•

to return to work after pregnancy.

Wrongful dismissal and breach of contract The Trade Union Reform and Employment Rights Act 1993 brought claims for wrongful dismissal (i.e dismissal contrary to the terms of a contract of employment) within the jurisdiction of Employment Tribunals for the first time. Previously such claims were only heard in the Civil Court.

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Chapter 3 Tribunal jurisdiction Jurisdictional limits .............................................................................28 Challenging jurisdiction......................................................................29 Preliminary hearings ...........................................................................29 Case management ...............................................................................30 Summary ..............................................................................................31

Chapter 3 Tribunal jurisdiction

Jurisdictional limits Employment Tribunals are, like other civil courts, entitled to exercise their jurisdiction only over those who are defined as being within certain territorial boundaries. In territorial terms, the tribunal’s jurisdiction is limited to cases where: •

the respondents, or one of the respondents, resides ‘or carries on business’ in England or Wales; or

•

had the remedy been by way of action in the county court, the cause of the action would have arisen wholly or partly in England or Wales; or

•

the proceedings are to determine a question referred to the tribunal by a court in England or Wales.

Similar provisions apply to proceedings brought in Scotland. Each right to bring a claim is circumscribed by rules with which the claimant must comply in order to advance their claim. These rules are complex and it is important to refer to the specific legislation to check whether or not a claimant can proceed with a claim, or whether it can be challenged on the grounds of jurisdiction. For instance, to advance a claim of Unfair Dismissal a claimant must have one year’s service on termination of employment, unless the claim is based on the grounds of sex, race or trade union activities, or the exercising of a statutory right. There are no short cuts to checking whether or not a claimant has the right to advance a claim. Each case must be reviewed on its merits and on the basis on which the claim is being advanced.

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3 TRIBUNAL JURISDICTION

Challenging jurisdiction Before an application is formally registered it is first vetted by staff at the Central Office of the Employment Tribunals (COET) who act in the name of the Secretary of the Tribunals. When the Secretary is of the opinion, either that the ETI (the Originating Application) does not disclose grounds for any relief which Employment Tribunals have jurisdiction to grant, or that the claimant is not qualified for the particular relief sought, then the Secretary may decide to delay registering and processing the application. The Secretary will write to the claimant informing them why the application has not been registered, and will advise that it will not be registered unless the claimant states in writing that they wish to proceed. If the claimant writes in and states that they wish their application to proceed, notwithstanding the comments of the Secretary, then the Regional Office of the Employment Tribunals will set the matter down for a preliminary hearing confined to the matter of possible disqualification. In this way many Originating Applications are weeded out at an early stage. Be that as it may, there are still claims that are advanced which fall outside of the jurisdiction of the Employment Tribunals for one reason or another. Where this becomes apparent to the respondent upon checking the Originating Application (ET1), the matter may be dealt with either by writing to the Employment Tribunal and pointing this fact out and seeking a preliminary hearing on the point, or by including this in the details set out in Section 8 of the ET3 (the Notice of Appearance). The latter course of action is preferable as it avoids arguments at a later stage as to whether the ET3 was returned within the stipulated 28 days or not. A simple statement at the commencement of Section 4 of the ET3 will suffice. In the normal course of events such a statement whether set out in a letter or the ET3 will lead to a preliminary hearing on the point in question.

Preliminary hearings Preliminary hearings on jurisdictional matters are almost always set down at the request of the respondent or by the tribunal at their own motion. If granted, a notice of hearing will be sent specifying the precise issue to be dealt with. A jurisdictional preliminary hearing will not deal with any substantive issues arising out of the claim. It will concentrate merely on whether the tribunal is entitled to hear the claim on the grounds of jurisdiction.

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3 TRIBUNAL JURISDICTION

The procedure at a preliminary hearing will follow that of a full hearing as to the merits. At the hearing, only evidence which is germane to the question of jurisdiction will be allowed. The tribunal will prevent questions being asked which relate to the merits of the substantive claim. If the tribunal decides that they do have jurisdiction to hear the claim they will direct that the matter proceeds to a full hearing. A respondent who believes that a claim should fail on the grounds of jurisdiction should prepare for the preliminary hearing as for a full hearing, concentrating on the issue/s which they believe challenge jurisdiction. Documentary and oral evidence on the point/s in question should be presented and the arguments as to why the respondent believes that the claim falls outside of the tribunals jurisdiction should be vigorously advanced. Success at this stage of the proceedings will prevent the claim proceeding further.

Case management Before proceeding further it is necessary to understand the powers of case management given to chairmen under the new rules of procedure. These powers are an integral part of the intentions of the regulations to speed up proceedings Wherever possible. For instance, new rule 17 gives Chairmen the power to hold ‘case management discussions.’ Such discussions are interim hearings intended to deal with matters of procedure and management of the proceedings, and as such are not the correct forum for dealing with orders to strike out a claim. They can be held by a Chairman on his or her own with the claimant and the respondent invited to take part. They may be held over the telephone or in person. If either party fail to carry out or comply with any order that results from any such discussion, their claim or response may be struck out and they can become liable to pay some or all of the other parties resultant costs. New rule 18 (C&RP 2004) enable Chairmen to order a pre-hearing review (PHR) (see Chapter 7) to: •

determine an interim or preliminary matter

•

issue directions

•

order payment of a deposit

•

consider any oral or written representations or evidence.

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3 TRIBUNAL JURISDICTION

The new rules provide that, notwithstanding the ‘preliminary or interim’ nature of a PHR, a case may be struck out at this stage where in the Chairman’s view a claim or response is scandalous, vexatious or has no real prospect of success; or where the conduct of the case has been scandalous, unreasonable or vexatious.

Summary All tribunal proceedings are regulated by the rules of procedure. These state that: •

the respondents must reside, or carry on business in England, Scotland, Wales or Northern Ireland

•

each right to bring a claim is circumscribed by specific rules relating to that right e.g.the right to bring proceedings for ‘Unfair Dismissal’ is restricted to employees only

•

there are no short cuts to checking the right to claim

•

challenges to the jurisdiction of Employment Tribunals will usually lead to a preliminary hearing.

Preliminary hearings on jurisdictional matters •

These are almost always set down at the request of the respondents or by the tribunal itself.

•

The hearing will not deal with any substantive issues.

•

The hearing will concentrate only on the question of jurisdiction.

•

The procedure followed at preliminary hearings is the same as at a full hearing.

•

Appeals are allowed against any decision reached.

Case management •

Chairmen have the power to order ‘case management discussions’ to deal with matters of procedure and case management.

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Chapter 4 The originating application Commencement of a claim .................................................................33 Reviewing the originating application (ET1)....................................35 Responding to the claim (ET3) ...........................................................39 Pleading ‘in the alternative’ ................................................................43 Consequences of not entering a notice of appearance (ET3) .........44 Risk of default judgements .................................................................45 Amending the ET3...............................................................................46 Summary ..............................................................................................46

Chapter 4 The originating application

Commencement of a claim Employment Tribunals commence with the submission of an Originating Application – the ET1. In this document the claimant is required to state precisely what it is that they are claiming. The Employment Act 2002 radically increased the amount of information sought via the ET1. The form has increased considerably in size to eight pages and 11 sections. It is now a formidable document indeed. It is accompanied by a five page closely worded guidance sheet which includes the recommendation that the claimant seek advice on completing the form. ET1 forms are readily available from offices of the Department of Employment and Job Centres. Most law centres and Citizens Advice Bureau also retain copies. The ET1 Claim Form requires the claimant to provide all of the information necessary for the tribunal to assess whether it can accept the claim. Using the form the claimant must state: 1.

their name, address and date of birth

2.

the name and address of any nominated representatives to whom papers should be sent

3.

the name and address of the person or company (respondent/s) the claimant is claiming against

4.

what the claimant is claiming

5.

the grounds on which the claim is being made

6.

whether they are, or were an employee of the respondent

7.

whether or not the claim includes a complaint that the respondent has dismissed them or is contemplating so doing

8.

whether they have raised the subject matter of any complaint in writing with the employer at least 28 days before initiating the claim. Where they have not raised a grievance in accordance with the statutory procedure they must explain why.

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4 T H E O R I G I N AT I N G A P P L I C AT I O N

Note: Item 8 does not apply where the claimant was not an employee of the respondent or where the claim consists only of a complaint that the respondent dismissed them or contemplated doing so (constructive dismissal claims excepted). The ET1 requires the claimant’s dates of employment commencement and termination (where relevant) both of which can have important consequences for the claimant’s continuity of employment. The ET1 also seeks information on the rate of gross and net pay – although neither of these is strictly necessary. Finally the claimant is asked what remedy they are seeking from the Employment Tribunal. A technically incorrect naming of the person/s against whom relief is sought will not invalidate an Originating Application if sufficient information is provided enabling the person to be identified. The Employment Tribunals Regulations require that the Originating Application be presented to the Secretary of the Tribunals, within three months of the date of termination in claims of Unfair Dismissal and six months in claims for redundancy payments. Other time limits apply to disability, sex and race discrimination and these should be checked out carefully. In the light of case law, presented means received by the tribunal offices, even if that is on a non-working day. In certain circumstances these time limits will be extended by three months – in other words, to six months. In practice therefore an employer can no longer assume that if a claim has not been received with a three month period from the date of dismissal that no claim will be forthcoming; that period should now be six months. Posting an application before the time limit is not enough. It must be received before the deadline. As a rule of thumb, items sent by first class post are expected to be received by the addressee on the second working day after posting. Each application is date stamped upon receipt by the Employment Tribunal Office. This date is the date used for calculating whether or not a claim is inside or outside of the specified time limits.

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Reviewing the originating application (ET1) On receipt of the ET1 respondents should thoroughly read the claim form for it contains vital information on the nature and extent of the claim. The nature of the claim will determine the exclusions that apply in each particular case for example in the:

Right to a written statement of Terms and Conditions of Employment and itemised pay statements. Part 1 of the Employment Rights Act 1996 establishes the parameters that must be complied with in order to meet the terms of the Act. Respondents should therefore check the application against these viz: •

The claimant must be an employee i.e. working under a contract of service as opposed to a contract to provide services (a self-employed person). What is their employment status?

•

The claimant should have a written contract containing the necessary particulars, or have been given a standing statement of fixed deductions from their pay. Has this been issued?

•

The claimant may have been re-employed on the same terms as for an earlier period of employment, within six months of that employment ceasing – and as such the earlier written terms will apply. Does this situation arise?

•

The claimant may have been employed for less than eight weeks. Check their length of service.

•

When was the application made? Is this later than three months after the cessation of employment to which it relates?

•

Is the claim barred because a COT3 (ACAS agreed settlement) or compromise agreement has been entered into?

Each claim will have its own particular set of exclusions that apply and reference must be made to the particular statute to determine the exclusions that apply to each particular case.

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The main areas to check in each claim are: 1.

The nature of the claim being made – is this Unfair Dismissal, sex or race or disability discrimination, or a breach of a statutory right? Is it a breach of contract claim etc.?

2.

Who is the claimant claiming against?

3.

Is the claimant represented, and if so, by whom?

4.

In the event of a claim for Unfair Dismissal – was the claimant dismissed?

5.

When did employment cease?

6.

Was a ‘Disputes Procedure or Grievance Procedure’ that met the requirements of the ‘Disputes Resolution Procedure Regulations’ of the Employment Act 2002, followed in every respect?

7.

When was the claim date stamped as having been received by the Employment Tribunals Office?

8.

What are the details of the complaint?

9.

What remedy is the claimant seeking?

10. Is the claim in question one which should have been dealt with through the use of the Grievance Procedure that should form the part of every employees contract of employment? Taking these items one at a time:

The nature of the claim being made What exactly is the claimant claiming? Do they have the required service to bring such a claim? i.e. one year’s service in an ‘Unfair Dismissal’ claim (unless linked with sex, race, disability discrimination or trade union activities), or a claim for redundancy payments. Is the claimant over the state retirement age? Remember there is no qualifying service requirement to bring a claim to enforce any statutory right, or a claim of discrimination on the grounds of disability, sex or race, or trade union activities. Similarly claims for breach of contract do not have a length of service requirement. It is important to spend time checking the ET1 to determine if the claimant is qualified to bring the claim they have entered into one of the Sections 5 to 9. Whilst the staff at the Central Office of Employment Tribunals will have reviewed the claim. They do not have access to employment or other records to enable them to validate it.

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Who is the claimant claiming against? A minor inaccuracy here need not be a major source of concern. It should simply be corrected in the Notice of Appearance, the ET3. If, however, the wrong respondent has been named e.g. because the named respondent, person, or company was not the employer, then it is important that this fact be raised as one of the grounds of resistance when completing the ET3.

Is the claimant represented and, if so, by whom? If so this will be set out in item 11 of the ET1. Beware the unrepresented claimant, they will get far more assistance from the Employment Tribunal should the case proceed to a full hearing, than a represented claimant. This could also assist or limit the flexibility available when seeking to negotiate a settlement of the claim via the Advisory Conciliation and Advisory Service (ACAS) as claimants are rarely able to adopt the dispassionate unemotional view of their case required in these circumstances. If the claimant is represented, who is representing them? Is it a solicitor, a law centre or a ‘no win no fee’ organisation? Is it a Citizens Advice Bureau or a friend? The answer to these questions will give you an indication as to how effective this representative is likely to be. This will also become important when discussions get under way with ACAS to explore areas of possible settlement.

When did employment cease? •

The date of termination will indicate whether the claimant has the required service, where this issue is of importance.

•

Does the claimant give the correct dates?

•

Did employment end with payment being made in lieu of notice?

•

Has the claimant put in the date when payment was made as the date of termination – or has the claimant put in the date when notice would have expired if it had been given?

•

Does this take the date beyond the one year service requirement for a claim of Unfair Dismissal?

•

Can the claim be challenged on these grounds?

•

If the claimant has less than one year’s service, and the claim has a one year qualifying requirement, have they linked it with a claim of a breach of a statutory right, or a claim of sex, race or disability discrimination, or trade union activities, thus circumscribing the one year rule?

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When was the claim received by the COET? •

Check the date when the employment was terminated with the date stamp of the Employment Tribunals Office shown at the top right hand corner of the ET1.

•

Is this period longer than three months, ending at midnight on the day immediately proceeding the COET date stamp?

•

Any concern in these areas could be grounds for an application to review whether or not the Employment Tribunal has jurisdiction to hear the case.

What are the details of the complaint? •

Has the claimant entered sufficient information to enable the complaint being made to be properly understood?

•

If not, an application for ‘further and better particulars’, should be made before the Notice of Appearance (ET3) is completed. This application should be made directly to the claimant by letter, with a copy going to the ROET.

•

The copy to the ROET should be accompanied by a brief letter seeking an extension in time to complete the ET3 (normally 28 days from the date the form was sent).

•

The letter to the ROET should state that it is the intention of the respondent to defend the claim, pointing out that further information is required from the claimant as to the precise nature of their claim in order for a proper defence to be filed.

What remedy is the claimant seeking? •

Is the claimant seeking an award of compensation?

•

Or re-instatement, or re-engagement as well? The well-advised claimant will always seek the latter in addition to compensation. Should they win the case and the respondent reject re-instatement or re-engagement, then the level of the award made could rise dramatically.

•

Where the claimant is only seeking compensation, then there is a greater prospect of a negotiated settlement being reached through the offices of ACAS than may be the case where a claimant seeks an alternative remedy.

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Is the matter in question one which should have been dealt with through the use of the Grievance Procedure? •

The Employment Act 2002 contains provisions preventing certain categories of complaint from being presented to a tribunal until it has been dealt with by the use of the employer’s Grievance Procedure. Where this has not happened, the case can be remitted back to the employee or ex-employee to enable the steps of the Grievance Procedure to be followed with at least 28 days elapsing thereafter. The time deadlines which surround any claim to the ET will be extended to allow these steps to be followed. The ET1 should be checked with this provision in mind and respondents should contact the Regional Office of the Employment Tribunal where in their opinion this aspect of a claim is relevant.

It is vital to know the precise nature of the claim being made to the Employment Tribunal before responding to the claim. The ET3 Notice of Appearance is a crucial document for it is the first stage of the defence pleading. It is important that this document is correctly worded. Unless the nature of the claim is understood properly, and responded to accordingly, the respondent risks their defence being weakened by an inadequate pleading at this early stage. If, however, it is believed that there is no case to answer, then consideration should be given to seeking a pre-hearing review to argue this at an early stage in the proceedings.

Responding to the claim (ET3) The ET3 is the first stage of the defence (or pleadings, as lawyers call it). It is important to remember that at the commencement of the proceedings all that the panel members will have seen of the case are the ET1 and the ET3. It is most unlikely that any of the other documentary evidence will have been available to them or that they will have had a chance to read this in the rare event that it is provided to them on the morning of the hearing. Panel members do not come together to hear a case until the morning of the day of the hearing.They may in fact have never met before this time. The ‘bundle’ of documentary evidence will not have been presented to the Employment Tribunal at this stage, so the importance of the ET3 cannot be over emphasised. It will be the first document read by the panel members on the day of the hearing (after the ET1) before the actual hearing commences. It therefore has considerable power to influence their view of events.

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Also, accompanying the ET1 and ET3 is the ET2. This contains useful information and advice about the documentation generally. The form that should be used to respond to the claim is the ET3 – the Response to the Employment Tribunal Claim. The biggest mistake made by those who complete ET3’s is to simply respond to the contents of the ET1. Of course it is important to correct any inaccuracies on the ET1 – incorrect dates of service, job titles, rates of pay or bonuses etc. However, the most important purpose of the ET3 is to set out the defence to the claim. It is not to reply to the facts set out in the ET1. If this is all that is done the respondent is locked into the version of events set down by the claimant. It is not enough to state that their version of events is inaccurate in a particular way. The respondent must set out clearly what the real course of events was. Section 1 of the form requires that you enter your details. Section 2 seeks information on the actions taken before the claim was lodged on matters relating to the claim. Items 2.3 and 2.4 are particularly important. They seek information on whether the matter was one that could have been raised under the Grievance Procedure. If the answer is ‘Yes’ then the form seeks further information on the stage the matter reached in the Grievance Procedure.These question are linked to the requirements for employers to operate a Grievance Procedure that complies with the Disputes Resolution Regulations of the Employment Act 2002 and, as such, extra care should be taken when completing them. Section 3 simply seeks information on the employment details. They are either correct or not. If not, here is the chance to correct them. Section 4 provides the opportunity to set out if the claim is to be resisted and, if so, on what grounds. Remembering what has been stated above on the importance of setting out the facts of what actually happened and not simply rebutting the details of the claim set out in the ET1, the full grounds on which the claim is to be resisted should be set out in this section of the form. Section 5 negates the need for any covering letter (which the guidance notes advise against). Here is the opportunity to seek a review or pre-hearing should the claim require challenging on the grounds of jurisdiction or any other matter. Section 6 gives space to enter the name of any representative you have appointed to handle the claim. The first and most important step in every case is to set out in chronological order the events that lead up to the complaint in question. Where this knowledge is not readily to hand, then an investigation will be required to establish

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the facts. This step of the exercise is a must in every case. So it is as well to commence it before the ET3 is completed to ensure that there will be no need to amend the defence at a later stage of the proceedings. The ET2 directs that the ET3 be returned within 28 days of the date on which the form was sent. This time limit is important. If it is not possible for any reason to return it within this time period, it is vital to notify the Employment Tribunal in writing before the 28 days expires from the date on which the form was sent, stating that it is the intention to resist the claim, but that more time is required and setting out the reason for this. It is vital that the intention to defend the claim be clearly notified to the Employment Tribunal within the time limit stipulated. Where the information on the ET1 is insufficient to enable a proper defence to be mounted as the basic facts of the claim are unclear, then this should be pointed out in the letter to the Employment Tribunal seeking an extension in time. The tribunal should be told that a reply will be completed as soon as the information required from the claimant is forthcoming. It would be wise to copy any request for ‘further and better particulars’ to the Employment Tribunal to ensure that there is a record of this request and the date upon which it was made to the tribunal. If you simply lack certain minor details and, apart from these, have enough information to hand to state your reasons for resisting the claim, you should state this in box 4 of the form; in box 5 (other information) state that you will provide the missing information as soon as possible and return the form to the ROET. The guidance notes that accompany the ET3 are clear on the steps that must be followed when completing each section of the form. Where it is the case that simply more time is required – perhaps because one of the main persons involved is on holiday, or absent on business, then this should be notified to the tribunal as part of the reason for the request for an extension of time. A failure to send in a response at all will disbar the respondent from taking any part in the proceedings. There are circumstances where this would provide grounds for review or appeal but the likelihood of success is so minimal as to lead to the recommendation that a response be entered on every occasion, irrespective of the circumstances. The nature of the claim will of course determine to a large extent what the outline of the defence is going to be. A claim of sex, race or disability discrimination will elicit a different response from a straight forward claim for unfair dismissal.

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The first grounds of resistance which should be stated in box 4 on the ET3 are those, if any, relating to the tribunals jurisdiction to hear the claim. For example, in an unfair dismissal claim: •

if the claim is out of time

•

if the claimant was not an employee of the respondent company

•

if the claimant was beyond the normal state retirement age

•

if the claimant had worked for less that one year before employment termination (unless linked with sex race or disability discrimination, or trade union activities)

•

If the matter is one in which the Grievance Procedure should have been used and has not. (Employment Act 2002).

Such contentions go to the heart of the tribunal’s jurisdiction to hear the claim and therefore must be stated first. A respondent can raise a jurisdictional matter at any time in the proceedings. However, raising the matter late in the proceeding risks costs being awarded against the respondent, should any postponements or adjournments arise as a direct result of such an application, on the grounds that the claimant would be unfairly disadvantaged should a tribunal allow such a challenge, without the claimant having time to prepare their response. Even where a respondent raises a jurisdictional matter, it would be unwise to rely on this exclusively. The tribunal may still find that it has jurisdiction to hear the claim. It is therefore important that nonetheless, the full reasons behind the respondent’s action/s is set out in full in the ET3. Where the claimant was dismissed, Item 4 of the Notice of Appearance should commence with setting out the reason for the dismissal. This should be couched in terms that comply with the relevant section/s of the legislation i.e. that the claimant was dismissed on the grounds of either their conduct, capability, lack or loss of qualifications, their position having become redundant, or for some other substantial reason. In cases of Unfair Dismissal, the Employment Tribunal’s job is first to establish that there was a lawful reason for the dismissal, i.e. one that falls within the definitions set out by the relevant Act of Parliament and secondly, that the dismissal was ‘fair’.

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‘Fair’ includes the fact that a Disputes Procedure was followed that met the specific requirements of the Disputes Resolution Regulations that came into force on 1st October 2004. Where the requisite disputes procedure has not been followed, or worse, no disputes procedure exists, or is inadequate, the respondent risks automatically losing the case with the award of compensation being increased by between ten per cent and 50 per cent. It is important therefore to state the reason for the dismissal in terms that meet the requirements of the relevant Act, then to set out in brief chronological order the events that led to the dismissal, checking these against the requirements of the Disputes Resolution Regulations at the same time. The final section of item 4 of the ET3 should conclude by submitting that the dismissal was carried out in accordance with the requirements of the legislation and was fair in every respect.

Pleading ‘in the alternative’ A respondent may wish to put forward more than one argument in defence of a claim of unfair dismissal. In such a case it is wise to plead ‘in the alternative’. For example, an employer would be well advised in a claim of constructive dismissal to first resist the claim on the basis that the respondent did not dismiss the employee, however, to also plead ‘in the alternative’ should the tribunal find that the employee was dismissed. The introduction of the Disputes Resolution Regulations makes this process doubly difficult, for without an actual dismissal being admitted, it is unlikely that an employer will have followed the steps required by the new regulations. Such a plea would require a statement setting out the reason the dismissal would have occurred, in the event that a dismissal had actually taken place. Such an approach does appear to defy logic, but without it a respondent can find themselves in difficulties should the tribunal decide that the claimant was actually dismissed and look to the respondent to meet their statutory obligations under the relevant Act. Pleading ‘in the alternative’ will not weaken the primary argument being advanced by the respondent. It will, however, give them a line of defence to follow if the tribunal do in fact find that the employee was dismissed. A failure to argue ‘in the alternative’ can, in certain instances, lead to the tribunal refusing to allow an alternative argument being advanced on the day of the hearing.

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Similarly in cases of redundancy, it is always wise to argue ‘Some Other Substantial Reason’ (SOSR) as an alternative to the primary reason being stated in the ET3. This will provide an alternative line of argument in the event that the tribunal finds that redundancy (the primary reason) is not proven. The door is then open for the respondent to argue that a re-organisation, or some other valid commercial SOSR reason, can be pleaded as a defence. The general outline tactics of the defence need to be decided upon at this early stage and overlaid onto the reasons given in box 4 of the ET3. Usually where a respondent fails to return the ET3 within 28 days, the copy ET1 and accompanying documents will be re-served by recorded delivery with a reminder of the consequences of a failure to respond, with a further seven days being given in which to respond to the claim. Whether this step will be followed following the introduction of the Employment Act 2002 Regulations remains to be seen as we go to print.

Consequences of not entering a notice of appearance (ET3) A respondent who has not entered a Notice of Appearance is not entitled to take any part in the proceedings except: •

to apply for an extension of the time limit for entering an appearance

•

to ask for further particulars of the claimants complaint

•

to apply to the tribunal for a review of the decision, because notice of the proceedings was not received

•

to be called as a witness by another person

•

to be sent a copy of the tribunal’s decision.

The consequences therefore are that, until an appearance is entered, a respondent will not be entitled: •

to apply for discovery of documents or to subpoena witnesses

•

to submit written representations for the consideration of the tribunal

•

to be heard or to be represented at the hearing other than as a witness

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•

to apply to the tribunal for directions on any matter arising in connection with the proceedings or to receive notices from the tribunal about any directions given, including extensions of time

•

to apply for a review of the tribunal’s decision except on the grounds that notice of the proceedings was not received.

Risk of default judgements New rule 8 of the Tribunal’s Constitution and Rules of Procedure 2004 introduces a system of default judgements, under which a tribunal Chairman may, in certain circumstances, determine a claim without a hearing if he or she considers it appropriate to so so. Such a judgement may decide liability alone, or liability and remedy, A chairman may issue a default judgement where a respondent has failed to submit a response within the prescribed time limit, or the respondent has submitted a response which failed to meet the pre-acceptance conditions. The respondent, if notified of the possibility of a default judgement being entered against them because of an inadequately completed ET3, can apply for a review of the Chairman’s decision not to accept their response. Alternatively a default judgement will not be issued where the claimant has written in stating that they do not want a default judgement to be issued. Due to the fact that tribunal proceedings are adversarial in nature each side is responsible for attacking the credibility of the opposing side. Tribunals are under a very limited duty to enquire into the merits of a party’s case where that party is not there to put the case themselves. As a result of this, a respondent’s defence may ‘fall by the wayside’ if no appearance is entered. This applies even where the respondents accept that their defence is weak, but still wish to argue about the amounts of compensation that should be fairly awarded to the claimant by the tribunal. The only sensible course of action here is for the respondents to put in their defence to a claim, by completing the ET3 on every occasion. In this way they preserve the maximum number of options for themselves.

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Amending the ET3 Where having dispatched the ET3, if respondents, for whatever reason, need to amend the details entered on their ET3, they should do this by writing to the tribunal setting out the changes they would like to make. Clearly the earlier this is done the better as tribunals frown upon late amendments or amendments which seek to catch the other party by surprise.

Summary The originating application (ET1): •

is available from the Department of Employment and job centres

•

must state the grounds upon which relief is being sought, plus

•

their name, address and date of birth

•

the name of the respondents i.e. who the claim is being brought against

•

what is being claimed

•

the grounds upon which the claim is being made.

The standard ET1 also requires: •

the claimant’s dates of employment – commencement and termination (where relevant)

•

their gross and net pay rates

•

the remedy being sought from the tribunal

•

technical errors will not invalidate the claim.

In addition: •

the ET1 must be presented to the Secretary of the tribunals within the specified time limits.

•

each application is date stamped by the COET

•

the essential purpose of the ET1 is to act as a trigger for the proceedings and to convey vital information about the claim

•

the claim will be coded by the COET defining the nature of the claim

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•

each claim should be checked to ensure that the claim is within the jurisdiction of the tribunal

•

the nature of the claim will determine the exclusions that apply.

Responding to the ET1 – preparing the ET3 •

The ET3 is the first stage of the respondent’s defence (the pleadings).

•

The Employment Tribunal panel will read it first on the day of the hearing, together with the ET1.

•

It has considerable power to influence the outcome of the case.

•

It must set out the respondents’ case, not merely reply to the ET1.

•

If jurisdiction is challenged it should be set out in the ET3

•

In Unfair Dismissal claims the reason for the dismissal should be stated with the requirements of the ‘Disputes Resolution Procedure Regulations’ being borne in mind.

•

The salient facts relating to the case should be set out in sequential order.

•

The question of ‘reasonableness’ (in Unfair Dismissal cases) should be addressed last.

•

It is wise to consider ‘pleading in the alternative’ at an early stage in the preparation of the ET3.

•

The outline defence ‘tactics’ should also be considered at the time the ET3 is completed.

•

Should an extension in time be needed to fully complete the ET3, this must be sought within the stipulated 28 days.

•

It is strongly recommended that an ET3 is presented even to combat the most frivolous of claims – a failure to enter a Notice of Appearance will prevent a respondent from taking any further part in the proceedings and risk a ‘default judgement’ being made against them.

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Chapter 5 Preparing the case The initial assessment .........................................................................49 Further and better particulars and discovery of documents..........51 Further assessment .............................................................................51 Witnesses..............................................................................................52 Developing the chronology ...............................................................55 Deciding strategy and tactics .............................................................56 Summary ..............................................................................................58

Chapter 5 Preparing the case

The initial assessment Before going too far in preparing a case, it is essential to carry out an initial assessment to determine the first steps that should be taken in responding to the claim. The following questions need answering:

1. On what grounds is the claimant seeking relief? What is it the claimant is asking the Employment Tribunal to decide? One tip here is to look in the top right hand corner of the front page of the ET1. Here the COET will have recorded in abbreviated code, the heading under which they have recorded the claim in the central register. The most obvious of these is ‘UD’ – unfair dismissal. This, and similar, easy to follow codes will give a clue as to how the COET have viewed the claim. The investigation into the facts of the case cannot properly commence until it is clear exactly what the claimant is seeking.

2. What is it that they want the Employment Tribunal to rule on? Where this is not clear, the respondent must seek further and better particulars from the claimant, via the regional office of the Employment Tribunal (ROET) on the precise nature of the claim. An extension in the 28 day time limit in returning the ET3 may need to be sought if the nature of the claim is unclear at this stage. The application should then be considered as a whole.

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3. Are there areas that would allow the claimant to change the nature of the claim as the case develops? Statements such as “I was dismissed because I am black” may have been coded as an Unfair Dismissal claim. However, it is quite likely that a claim of racial discrimination will be added later in the proceedings. It is open to the Employment Tribunal to allow the nature of the claim to change as late as the day of the hearing. Whilst in such circumstances the respondent who has not prepared a defence to an amended claim can seek an adjournment to deal with the changed circumstances, it is by no means certain that this will be granted. Similarly, a statement such as “I was made redundant at short notice and did not receive any redundancy pay” can easily be extended from a claim for redundancy pay into a claim of Unfair Dismissal. An overview of the claim at this initial stage can help prevent the respondent being ambushed at a later stage in the proceedings. The initial assessment should concentrate on the following: •

The precise nature of the claim.

•

The facts of the case as understood at this early stage.

•

The documents that exist which support/challenge the claimants version of events.

•

The witnesses that are available and whether they are competent and reliable.

•

The statutes that are involved in the claim.

•

The judicial precedents that exist (case law).

•

Were the relevant procedures followed? This is particularly important in claims of unfair dismissal. The Disputes Resolution Procedure Regulations brought in on 1st October 2004 by the Employment Act 2002 enable tribunals to not only penalise employers by increasing the level of compensation against them where basic procedures were either not in place, or were not followed in the events leading up to the dismissal in question, but to automatically make a finding of unfair dismissal against them.

•

The nature of the claimant – are they a professional litigant?

•

How important is it to win the case?

•

The public relations and employment relations implications associated with the case.

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•

Whether the case can be settled quickly for nuisance value – and if so, for how much?

•

The likely cost of losing the case – and the award of compensation that could be made.

•

The time and other resources available to prepare the defence.

•

Who is to handle the case?

•

Is all of the information and documentation that is needed to fight the case available? (See below.)

Further and better particulars and discovery of documents The method of obtaining more detailed information on the nature of the claim or clarifying issues that may be unclear from the ET1 is to seek ‘Further and better Particulars’ from the claimant. This also applies if the claimant has in their possession documents that are referred to in their application but which are not available to the respondent. If these issues arise, the respondent should, in the first instance, write to the claimant seeking further and better particulars and/or copies of the relevant documents. If, after allowing a reasonable period of time to elapse the claimant’s reply is not forthcoming, then an application should then be made to the REOT in writing, attaching a copy of the request made previously to the claimant, seeking an order for the release of the information sought. (See Chapter 7, section 4 – Further and better particulars.)

Further assessment The cost and other implications of losing the case needs to be assessed. It is essential to have the costs to hand at an early stage. If the likely level of compensation is very low then this fact should be drawn to the attention of the other side early on in the proceedings via ACAS, thus enhancing the prospects of settling the case at minimal cost. If, on the other hand, the figure is at the maximum level of compensation that the Employment Tribunal can award, or there are risks of a higher figure than the maximum arising because of the possibility of re-instatement or re-engagement being requested and denied, or because the

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claim includes an element of racial or sexual discrimination, these facts must be take into account. An additional factor to be considered in unfair dismissal claims is whether any disciplinary proceedings were followed, and if so if these complied with the minimum requirements of the Disputes Resolution Procedure. The Employment Act 2002 gave tribunals the power to make findings of automatically unfair dismissal and to increase levels of compensation by up to 50 per cent where the employer failed to follow the minimum statutory disciplinary procedure. Where an employer prevented an employee from appealing against the dismissal, a supplementary award of two weeks pay can be added to any award made. The implications of settling the case without a hearing also needs to be considered. Will this create an unhealthy precedent for similar situations in future? Is the issue a principled one on which it would be detrimental to management’s authority to settle? The tactics that will be appropriate in a claim that attracts the possibility of a maximum award of compensation arising need to be thought through very carefully. Senior management need to be aware of the risks that this poses to the ‘bottom line’. Consideration also needs to be given to the possibility of making a meaningful offer to settle where the respondents’ case is weak. If the decision is taken to fight the claim, work should commence on the case preparation.

Witnesses This should commence by identifying and interviewing potential witnesses. Lord Justice Phillips in a significant case, laid down the basic rules to be followed when choosing witnesses; he said: “It is for the representatives to decide how they shall call their evidence. Representatives are entitled to conduct proceedings as they see fit within the rules, and in particular, to call witnesses in the order that they wish.” Witnesses should be chosen for their ability to give relevant first hand evidence that will enable the Employment Tribunal to understand the facts of the case

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and reach their decision accordingly. Investigators should be seeking witnesses who can testify as to: •

what was said

•

what was heard

•

what was seen

•

what was done.

It is essential at an early stage to get those who might be witnesses to write down in their own words, their recollections of the events surrounding the incident or issues concerned. At a later stage these written recollections can be converted into the formal witness statements required as part of the documentary ‘bundle’ used as evidence during any proceedings. At the initial stage, however, the written recollections of potential witnesses will be an invaluable aid in deciding who to interview first, and what questions to put to them. Wherever possible investigators should avoid putting leading questions to potential witnesses – even during the initial investigation. Statements such as “You saw… didn’t you?” are valueless, as questions such as this cannot be put at the tribunal hearing. Rather the investigator should ask questions designed to test the real knowledge of the potential witness. In addition, answers should be sought to the following: •

How sure is the witness of the facts without being unduly prompted?

•

How well will they stand up to cross-examination?

•

Is their knowledge first, or second-hand?

•

How will they come across at the tribunal as a witness?

•

Is their evidence ‘key’ to the issues that will be tested at the tribunal?

What the investigator is seeking is as clear a picture as possible of the events leading up to, and surrounding the incident, or issue in question. It may be that supporting witnesses will be required to explain to the tribunal the details of systems, practices, processes or procedures, even though these supporting witnesses may not have been directly involved in the events in question. These supporting witnesses may be necessary to ‘flesh out’ the picture and ensure that the employment tribunal has the necessary knowledge to place the events or incident in question in their correct setting. Issues of right or wrong, fairness or unfairness, are not of primary concern at this stage. The process of investigation should start by assembling the facts, rather

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than attempting to reach conclusions from them. This will come at a later stage in the proceedings. Clearly it is essential to call the managers or directors who made the decision to discipline or dismiss heard grievances or who made the salient decisions in the matter under question. It will be hard to convince any tribunal of the correctness of any decision without these personnel testifying in person. In addition, it is essential to call any person who: •

saw or witnessed the events in question

•

was involved in any relevant meeting/s

•

heard, or attended any appeal hearing

•

was part of any investigation that preceded disciplinary proceedings.

When carrying out the investigation the investigator should: •

be objective – even sceptical until convinced otherwise

•

critically examine documents that might be relevant

•

test what potential witnesses are saying, against what other witnesses say

•

concentrate on facts, not opinions

•

collect evidence – avoid passing judgement at this early stage

•

probe the memories of witnesses to determine the extent of their knowledge

•

tactfully cross-examine witnesses to test the extent of their ability to stand up to rigorous questioning

•

make notes and agree these with witnesses at the end of each interview.

Note: These record notes can be particularly useful when there is a long period of time between the interview and the hearing dates as they will be virtually contemporaneous (i.e. written close to the time that the event/s occurred) they can act as memory joggers immediately prior to the hearing itself.

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Developing the chronology This is one of the most important steps to be followed in preparing a case for hearing, particularly where the case is involved or complex. The sequence of events that led up to the claim must be set down chronologically, identifying the part that each witness played in the proceedings. These must then be linked to any related and relevant documents. Once completed the Chronology will become the master control document that will guide the representative throughout the hearing. This process should be followed in dealing with all substantive claims. The document should be headed ‘Chronology’. It should contain four main subheadings: 1.

Date.

2.

Event.

3.

Document number.

4.

Witness/es to the event.

Column one – date Under this heading all the relevant events or actions should be listed in date order.

Column two – event Under this heading the facts about the event should then be set out briefly alongside the date concerned.

Column three – document number The provisional numbering of any relevant documents that relate to the event in question will be listed here. Note: At this stage it is not advisable to attempt to allocate the final number that will be given to the documents in the master bundle of documentary evidence to be presented to the Employment Tribunal. A provisional pencilled numbering that will help to locate the document during the initial preparation stage will be adequate.

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Column four – witness/es The name or initials of the person/s who can testify to the event in question should be inserted here. Where more than one event occurred on a particular date this should be set down in time order under the relevant date. The whole purpose of this document is to create control reference sheet/s that will enable a complete overview of the case to be readily available whenever the case is being worked on or presented. Once the Chronology has been created, it will be time to look objectively at the case to decide upon the overall strategy to be followed during the defence.

Deciding strategy and tactics Now is the time to determine what the overall objective of the case defence is to be. Does the case have major implications? Perhaps it is a test case with other claims linked to, or depending upon, its outcome? Or perhaps it is a gross misconduct dismissal where the authority of line management is in danger of being diminished if the case is lost or settled? If this is the situation, then a negotiated settlement may be out of the question however tempting it may be. What is the worst case scenario if the case is lost? If the answer to this is a relatively small amount of money in compensation with no loss of management’s authority, then perhaps a negotiated settlement under the auspices of the Advisory Conciliation and Arbitration Service (ACAS) would be the most appropriate course of action (see Chapter 6). Measured against this must be added the cost to the business of fighting the case. Such an assessment should include the cost of: •

management time in research and attendance at the tribunal

•

research time in the case preparation

•

witness time in preparing witness statements

•

witness attendance costs

•

the ancillary costs of attendance at the tribunal

•

the unquantifiable cost of adverse PR and the possible impact on internal industrial relations of an adverse decision on the remainder of the workforce.

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The importance of the issue/s in question will determine if it is sensible to seek a settlement or to fight the case to its conclusion. With all of the available evidence to hand it should be possible to carry out a realistic assessment of the chances of success by using the checklist set out below. •

What facts will have to be proved, versus what facts can be proved?

•

What are the strengths and weaknesses of the case?

•

What is the cost of losing the case? An assessment of compensation that could be awarded if the case were lost is essential.

•

What witnesses are available and how good is their evidence?

•

What documentary evidence exists which supports the respondent’s claim?

•

What evidence exists that supports the claimant’s case?

•

How do these compare?

•

Were all relevant procedures followed – if not, why not?

•

What are senior management’s views on the case?

•

How much time is involved, and hence cost, in preparation and representation?

•

Are there areas of possible settlement?

•

What are the main judicial precedents established by case law – do they help or hinder the prospects of success?

•

What are the public relations and employment relations implications of losing, or of having facts of the case reported in the local/national press?

The answers to these questions will also help to determine if the case should be fought or settled. If a settlement is the preferred option, the maximum amount of money to offer in an attempt to reach a settlement can be calculated and agreed with senior management. The ceiling for this figure will arise by calculating the sum of the actual losses suffered by the claimant to the date of the hearing, plus the potential, or future loss which could arise if they remain unemployed, to the maximums allowed. It will also be useful to know the true cost of representation and the cost of travel and witnesses attendance, so that the full cost that will be incurred if the case proceeds to a full hearing is understood. Clearly for a settlement to be a viable and attractive option to the respondents, the figure to be offered must be less than the figure that can be calculated as

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the possible award that could be made at an Employment Tribunal. Further, it must be one which is attractive to the claimant bearing in mind that the outcome of their application is by no means certain prior to the hearing taking place. The cost to the claimant of representation, travel and associated costs can also be used as a lever in any settlement negotiations. In assessing the level of any final offer to be made to the claimant the true cost to the business of fighting the case should be borne in mind should the claimant refuse to settle for less than they could obtain in compensation if they were to win their case. (See Appendix 1 for more information on possible awards.)

Summary •

The respondent’s overall strategy and tactics can only be decided upon once all the evidence has been collected.

•

Then, and only then, can a realistic assessment of the chances of success be carried out.

•

The full financial risk must be assessed.

•

The public relations and employment relations implications must also be assessed.

•

Based on the final facts a decision should be reached on whether the case should be fought or settled.

•

If an agreed settlement is the preferred option, agreement must be reached with senior management on any offers to be made prior to these being made to the claimant via ACAS.

The initial assessment: •

On what grounds is relief being sought from the tribunal?

•

What are the costs and other implications of losing at the tribunal?

•

What witnesses and evidence are available?

•

Are these reliable?

•

What documentary evidence is available?

•

Does this support the respondents’ case?

•

Has procedure been followed in every respect?

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•

What are the public relations and employment relations implications of proceeding to a full hearing?

•

Can the case be settled for ‘nuisance’ value?

•

What is ‘behind’ the claim?

•

What time and resources are available to fight the claim?

•

What statutes are involved – do they involve sex, race, disability or trade union activities?

•

Who is to handle the case?

•

Are all the information and documents required to fight the case available?

Witnesses should be chosen on their ability to give relevant first hand evidence to the Employment Tribunal on: •

what was said

•

what was heard

•

what was seen

•

what was done.

It is vital that witnesses are credible and truthful. They must be sure of their facts without being prompted. Other considerations are: •

is their knowledge first or second hand?

•

how will they come across as witnesses?

•

is the evidence they will give ‘key’ to the case being heard?

•

how well will they stand up to cross-examination?

Representatives should: •

be objective, even sceptical until convinced otherwise

•

critically examine documents to ensure they match the testimony of each witness

•

test witness statements against each other

•

collect evidence – rather than pass judgement

•

make notes as they proceed and agree these with witnesses

•

test all evidence given.

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The development of a concise Chronology is vital for effectively controlling the information collected on the case. This information should be contained in one document called a ‘Chronology’. This document will provide the representative with a vital concise overview of the case and all related evidence. When finalised, the Chronology will have four main subheadings: 1.

Date.

2.

Event.

3.

Document number (where documents exist).

4.

Witness/es to the event.

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Chapter 6 Negotiating settlements and dealing with ACAS The role of ACAS.................................................................................62 COT3 wording......................................................................................66 Compromise agreements....................................................................66 Withdrawals .........................................................................................68 ACAS arbitration.................................................................................69 Preparing for the arbitration hearing ...............................................70 The hearing ..........................................................................................71 Making awards where appropriate ...................................................71 Summary .............................................................................................72

Chapter 6 Negotiating settlements and dealing with ACAS

The role of ACAS Once a case has been formally introduced into the Employment Tribunal system by the registration of an Originating Application, it can ultimately only leave the system as the result of a judicial decision. A copy of every application made to the Employment Tribunal is sent by the COET to the Advisory Conciliation and Arbitration Service (ACAS) (except where it is a claim for redundancy payment only). Likewise a copy of every Notice of Appearance is dispatched, upon receipt, to ACAS. It is important for students of Employment Tribunals to understand that ACAS is an entirely separate body from the Employment Tribunals. ACAS is not part of the Employment Tribunal structure and merely acts in a mediating role. All communications with ACAS therefore come under the heading of ‘privileged information’ and cannot be communicated to the Employment Tribunal by ACAS. The majority of cases that are withdrawn or settled do so as a result of the involvement of the ACAS Conciliation Officer (CO). ACAS came into being in 1975. Its role now extends far beyond that which was originally conceived for it. However, one of the most significant of these roles is in providing a service to parties involved in ET proceedings. The services of the Conciliation Officer (CO) relating to Employment Tribunals were originally established in 1992. This required ACAS to designate certain of its officers to perform the functions of COs relating to matters which could be the subject of proceedings before an Employment Tribunal. Thus the services of the CO may be utilised before, as well as during, any tribunal proceedings. The duty of ACAS is to seek a settlement of a dispute without it being determined by an Employment Tribunal, this duty arises: •

where a case has been initiated in an Employment Tribunal and both parties request the assistance of ACAS

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•

where a case has been initiated at an Employment Tribunal and, although neither party has requested assistance, a CO considers that there is a reasonable prospect of reaching a settlement

•

although no case has been initiated at Employment Tribunal, it is alleged that circumstances exist in which such a claim could be made, and either party requests the involvement and assistance of ACAS.

The role of ACAS is to ensure that both parties understand what is being agreed and the implications, not to say what can or cannot be agreed. In the 1976 ACAS Annual Report the role of the CO was described as being: ‘to help the parties to reach an agreement – but he (sic) does not act as an arbitrator on the merits of the case. Nor does he impose or recommend a particular settlement. It is not part of his role to persuade or cajole the parties to settle. Settlements are the responsibilities of the parties concerned. He can however draw their attention to relevant precedents. They would be failing in their responsibilities to some claimants if they did not draw their attention to qualifying conditions, case law and precedents, the strong points in the respondent’s/claimant’s case and to the risks of costs being awarded if the Employment Tribunal considers either party to have acted in a frivolous or vexatious manner.’ A large number of applications are disposed of without hearing. It has been calculated that approximately 60 per cent of cases are settled or withdrawn under the auspices of ACAS and this figure has remained fairly constant over time. All negotiations conducted by an ACAS CO are strictly confidential and nothing of what goes on between the parties may be brought out at any subsequent Employment Tribunal hearing. On average the level of settlements agreed with ACAS are lower than that which would be awarded should the case succeed at Employment Tribunal. For the respondents, there is the added advantage of avoiding the costs involved in attending the Employment Tribunal. For the claimant, the uncertainty of the proceedings is removed; one additional advantage for the claimant is that the recoupment regulations* do not apply to a negotiated settlement and thus the settlement figure is not reduced by virtue of these. *These Regulations govern the recovery, from any award of compensation made by an Employment Tribunal, of any state benefits that the claimant may have received since the date of their dismissal.

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Once agreement has been reached on the terms of a settlement, its details are recorded on form COT3. The wording of the settlement is agreed between the parties, and both parties usually sign the document, although this is not a legal requirement. Its terms are henceforth binding upon both parties and enforceable at a higher court if payment, according to the terms set out, are not complied with. In so far as ACAS conciliated settlements are concerned, a settlement reached under the auspices of an ACAS CO, or which fulfills the requirements of compromise agreements under the terms of the relevant legislation, binds the parties legally so that a complaint cannot subsequently be presented to an Employment Tribunal on the same matter. The main facts to be considered when negotiating settlements via ACAS are: •

discussions with the Conciliation Officer are confidential, and may not be referred to at any Employment Tribunal hearing

•

the Conciliation Officer has no duty to inform the parties of the relevant legislation and has no duty to act as an adviser to either party

•

an agreement reached through the Conciliation Officer’s good offices need not be in writing to be effective

•

ACAS are not prepared merely to sign a COT3 and will not become involved before an application to a tribunal has been lodged.

On occasions it can be useful to speak directly with the claimant. Care should be taken to get the acceptance of the CO to this course of action so as not to prejudice the CO’s role. In particular, whilst the outline of a settlement may be discussed with the claimant, care should be taken not to conclude this without going back to the CO concerned. ACAS do not see the role of the CO as being that of a ‘rubber stamp’. Unless they have been involved in advising the parties on the terms of a settlement, they will be reluctant to endorse a COT3. One important point: unless a manager or director has the authority to make a firm offer then none should be made. Once made and accepted, any offer made via an ACAS CO is considered binding on the parties. The broad parameters of a possible settlement can be explored with the CO. This is all part and parcel of exploratory negotiations but managers must first be clear that they have the authority and mandate to offer a specific figure or settlement term, before a firm offer is made via the CO.

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Caution should be exercised when the claimant is claiming in respect of a Statutory Right conferred by Employment Protection legislation and a settlement is reached between the parties that does not involve an ACAS conciliator. The general rule here is that settlements between the parties are not legally binding as such. This is because employees cannot contract out of statutory rights bestowed on them by Acts of Parliament. The exceptions are when a tribunal formally incorporates a settlement into its decision or when the settlement arises from the actions of an ACAS Conciliation Officer. The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 which came into force of 1st October 2004 radically changed the rules governing the period of time during which conciliation, under the auspices of ACAS, can take place. Previously conciliation was open ended in time. The new rules introduce fixed defined periods for conciliation under the auspices of ACAS. During these periods of conciliation no hearing date will be set or notified to the parties. Once these periods have elapsed ACAS will not become involved further as their ‘duty’ to conciliate will have been fullfilled. They will still have the ‘power’ to conciliate but are expected to exercise this power with considerable restraint. New rule 22 introduces a fixed period during which the parties to a case are given the opportunity to reach an ACAS conciliated settlement. This fixed period does not apply to claims relating to sex, race, disability, sexual orientation, religion or belief discrimination, equal pay or public interest disclosure (whistle blowing). New rule 22(5) provides that a ‘short conciliation period‘ of seven weeks, starting with the date the claim is sent to the respondents, will apply to: •

breach of contracts claims

•

a variety of claims brought under the Employment Rights Act 1996 – including unlawful deductions from wages, right to guarantee payments, right to time off for public duties, a failure to pay redundancy payment

•

a variety of claims brought under the Trades Union and Labour Relations (Consolidation) Act 1992, and

•

claims under the TUPE Regulation regarding a failure to pay compensation following a failure to consult as required by the TUPE Regulations.

A ‘standard conciliation period’ of 13 weeks will apply to all other claims. The rules do allow for the ‘short conciliation period’ to be extended into the ‘standard period’ if a Chairman considers that the complexity of the proceeding demands it. Further, a ‘standard conciliation period’ can be extended by two weeks where ACAS considers it possible that proceedings will be settled during the extended period. A Tribunal Hearing date will not be issued during any conciliation period.

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COT3 wording Care should be given to the wording of the COT3. In Unfair Dismissal claims it is normal for the wording to include the following: ‘in full and final settlement of all claims by the claimant against the respondent, arising from the termination of the claimant’s contract of employment with the respondent.’ Whilst it is desirable to obtain wording which is in full and final settlement of all claims that the claimant could have against the respondent, it is rare for a claimant to agree to such terms as these would outlaw any claims that might arise from the development of an illness or disease qualifying for compensation, or any matter which might arise surrounding pension rights or similar matters.

Compromise agreements This type of agreement is provided for by the Employment Relations Act 1996 and is useful when the parties have already reached agreement, or where one of the parties refuses to reach a settlement without further legal assistance or advice. There may indeed be no ongoing disagreement but the parties, having reached agreement, wish it to be set out in legal form. A compromise agreement can resolve issues in a legally binding document that a tribunal has jurisdiction to rule on. Compromise agreements are legally binding documents which set out the terms on which a settlement of a dispute has been reached between an employer and an employee. Their main purpose is to resolve disputes that an Employment Tribunal has jurisdiction to determine. In this regard they serve two basic purposes: •

They are provided specifically to encourage two parties to reach a binding agreement of a dispute without recourse to law.

•

They are a means of finalising a dispute because, once an agreement is made, the parties to the agreement are prevented from taking further legal action.

Employment Tribunals cannot consider a claim that has been settled by means of a properly constituted compromise agreement. However, this applies only to the types of compromise agreement that meet the criteria set out below.

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Parliament, through employment law, gives employees protection whilst in employment, including the right to enforce their rights at an Employment Tribunal. Employers are not able to buy this right from employees, nor are employees entitled to sell it, therefore any agreement that purported to do so would be unenforcable unless it was in the form of a compromise agreement, i.e. through the method laid down by Parliament. An employer and employee can only reach an agreement to exclude a worker going to an Employment Tribunal in two ways: •

By a COT3 settlement brokered by ACAS.

•

By a valid compromise agreement.

All other forms of agreement are invalid if they seek to preclude the employee from pursuing a claim at Employment Tribunal. A compromise agreement might be useful in the following examples: •

Where an employee claiming racial discrimination is prepared to accept an apology and a payment rather than go to law.

•

Where two companies merge requiring only one sales director. As a result, one of the sales directors agrees to leave with an enhanced redundancy payment.

•

An employee resigns because of incompatibility with their supervisor. The employer agrees to make a cash settlement rather than face a possible claim in the Employment Tribunal.

In each case the employer wishes to ensure that the matter is settled permanently and therefore a subsequent claim to an Employment Tribunal cannot arise.

Requirements of a compromise agreement To comply with the law, a compromise agreement must meet the following requirements: •

The agreement must be set out in writing.

•

It must relate to one possible set of tribunal proceedings. It can, however, cover any issue raised in that complaint as long as they are matters over which the tribunal has jurisdiction.

Before signing a compromise agreement an employee must have been advised by an independent qualified person about the content of the agreement and its full effects. In fact, the agreement must state that this has happened, naming

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the adviser involved. In particular the employee must be advised of the effect of the agreement on their right to pursue the relevant matter at any subsequent Employment Tribunal. A qualified person may be: •

a solicitor or barrister or authorised advocate

•

a trade union official certified in writing by the union as being competent to give advice

•

an Advice Centre worker who is appropriately certified and authorised by the centre.

•

a fellow of the Institute of Legal Executives, so long as they are employed by a Solicitor’s practice and supervised by a solicitor when giving advice.

The following aspects of any agreement are also essential: •

The adviser must be named in the agreement.

•

The adviser must be adequately insured against giving improper advice.

•

The agreement must state that all the conditions imposed by statute have been met.

Independence of adviser Any named adviser must clearly be independent. This means that a solicitor who is acting for both parties may not be used, nor may the employer’s solicitor. It can also be argued that a solicitor drawing up a compromise agreement for an employee is not acting independently if their fee is to be paid by the employer, although payment made by the employer, or an agreement to cover an agreed sum, is not unusual.

Withdrawals If the claimant at any time gives notice of the withdrawal of his or her originating application a tribunal may dismiss the proceedings. In practice it is not unusual for applications to be dismissed in this way. Claims that are lodged in anger or a desire to retaliate against an employer or ex-employer can seem less attractive when the claimant more fully appreciates what is involved in pursuing a claim. Or more often a settlement is reached between the parties which settles the matter at issue. Notice in writing to the tribunal from the claimant of their desire to cease the proceedings is all that is required for a claim to be dismissed.

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ACAS arbitration The ACAS Arbitration Scheme that came into being in May 2001 provides an alternative to going to an Employment Tribunal in cases of unfair dismissal only. Information regarding the scheme is despatched with the ACAS conciliation information letter sent to both parties following receipt of the ET1 and the ET3. Following the announcement of the scheme, ACAS recruited and trained a number of arbitrators who were drawn from a range of backgrounds both academic, legal and those experienced in employment relations. Reactions to the scheme have been mixed and the take up has not been great. Lawyers are not too keen on the scheme as the proceedings eliminate cross examination and pay minimal regard to case law. Further legal representatives who do attend are given no special status. The shortness of the hearings and the relative simplicity of the preparation also reduces considerably the fee earning opportunities for lawyers. Trade unions are also somewhat reluctant to use the scheme as the opportunities to appeal against the arbitrators decision are very limited as to be almost non existent. Although records from the Employment Appeal Tribunal show that of 37,000 appeals lodged only 15 resulted in the original ET’s decision being overturned trade unions still like the fact that the appeal route is available to them through the Employment Tribunal system. ACAS claim, however, that the new scheme is: •

speedy – with hearings taking place within four to five weeks of an application being made

•

informal – with no cross examination taking place

•

confidential and non-legalistic.

The scheme was introduced to give people a choice in cases of alleged unfair dismissal. Arbitration is a tried and tested way of settling issues and is often used in disputes between employers and trade unions. The main differences between having a case heard at an Employment Tribunal and partaking in the Arbitration Scheme are that Arbitration Scheme hearings: •

are held privately in ACAS offices or hotels and not at an Employment Tribunal Office

•

are normally completed in half a day and so are much shorter.

•

are heard by a single trained arbitrator who is experienced in employment relations

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•

are more informal that a comparable Employment Tribunal

•

allow legal representatives to be present but without any special status being afforded to them

•

with the outcomes being strictly private and confidential

•

ensure that the decision of the arbitrator is final and binding on both parties.

In addition: •

the awards that the arbitrator can make are the same as the Employment Tribunal

•

the right of appeal on a point of law or fact which is available following Employment Tribunal proceedings is absent from the Arbitration Scheme.

The Arbitration Scheme can also only be used to hear cases of unfair dismissal. All other matters such as breach of contract claims or unlawful deductions of wages etc must be heard by an Employment Tribunal. Both parties must agree to use the scheme. To enter into the scheme each party is required to sign an Arbitration Agreement and an accompanying waiver forgoing certain rights that they would have at an Employment Tribunal, such as the right to cross examine the other party’s witnesses. All questioning is undertaken by the arbitrator, although parties can suggest questions to the arbitrator that they would like answers to. Both parties are required to send all of the relevant case papers to the appointed arbitrator within six weeks of signing the initial agreement.

Preparing for the arbitration hearing Once arbitration has been chosen, a comprehensive booklet is sent to each party setting out exactly how the Arbitration Scheme works and giving detailed information on how to prepare for the hearing. Both parties are required to send a statement of their case to the arbitrator before the hearing. This will be copied to the other party. This statement is in addition to completing either the ET1 or the ET3. The statement should set out clearly and succinctly the facts of the case highlighting the issues which the party feels are central to their claim or defence.

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Both parties are required to cooperate with each other to ensure that all of the relevant documentation is available to assist in a fair presentation of the case. Witnesses should be identified and prepared as for a full ET hearing and checks made to ensure that they are able to attend on the day. Either party can be accompanied by anyone that they choose to help them present their case to the arbitrator but legal representatives will be given no special status.

The hearing The arbitrator will conduct the hearing by: •

giving the parties plenty of opportunity to present their arguments in an informal and flexible way

•

ensuring that the proceedings are conducted in a non legalistic way without the requirement to swear on oath or take account of strict law or case law

•

questioning the parties and witnesses but without allowing cross examination

•

providing help and assistance to both parties to ensure that every aspect of their case is presented and understood.

Making awards where appropriate In reaching a decision about whether a dismissal was fair or unfair the arbitrator will take account of the following: •

Guidance given in the ACAS Code of Practice Disciplinary and Grievance Procedure and the ACAS Advisory Handbook Discipline at Work.

•

The Disputes Resolution Procedures Regulations introduced by the Employment Act 2002.

•

Their own knowledge and experience of good employment relations.

•

The relevant evidence in the case.

If the arbitrator decides that the dismissal was unfair they may award re-instatement, re-engagement or compensation. They will approach the question in the same way as an Employment Tribunal as set out in this brief.

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Summary •

ACAS receive copies of all Employment Tribunal claims and responses to these.

•

The role of ACAS is to help the parties reach an agreement to settle the claim.

•

Fixed periods of conciliation of between seven and 13 weeks were introduced by the Employment Act 2002 outside of which ACAS will not conciliate.

•

ACAS do not act as arbitrators on the merits of the case.

•

It is not the role of ACAS to cajole or persuade the parties to settle.

•

All negotiations conducted under the auspices of ACAS are confidential.

•

Once an agreement is reached between the parties, its terms are recorded on a COT3.

•

Both parties usually sign this document.

•

Its terms are binding on both parties and enforceable at a higher court.

•

An agreement reached via ACAS need not be in writing to be effective.

•

Respondents should always get the permission of ACAS before speaking directly to a claimant.

•

Respondents should be careful not to make unauthorised offers.

•

Respondents should always seek settlements that are ‘full and final’ covering all claims that could be brought before an Employment Tribunal.

•

Compromise agreements can be entered into by both parties without the involvement of ACAS.

•

Withdrawals can occur at any time simply through the Claimant notifying the tribunal in writing of their desire to cease the proceedings which they initiated by lodging their original ET1.

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Arbitration •

The ACAS Arbitration Scheme came into effect in May 2002.

•

It provides an alternative to the Employment Tribunal in cases of unfair dismissal only.

•

ACAS claim that the new scheme is: –

speedy with hearings taking place within four to five weeks of an application being made

–

informal – with no cross examination taking place

–

confidential and non-legalistic

–

held privately in offices or hotel rooms

–

with hearings normally completed within half a day

–

heard by a single trained arbitrator

–

awards compensation as an ET would

–

preparation should be the same as for an ET

–

arbitrator will use their own knowledge and experience of Industrial Relations to reach their decision

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Chapter 7 Interlocutory orders, hearings and previews Preliminary hearings ...........................................................................75 Pre-hearing reviews ............................................................................75 Directions .............................................................................................78 Further and better particulars ...........................................................80 Discovery and inspection of documents ...........................................81 Witness orders .....................................................................................81 Striking out...........................................................................................82 Summary ..............................................................................................82

Chapter 7 Interlocutory orders, hearings and previews The range of matters with which tribunals deal in the stages between receipt of both party’s pleadings and the full hearing itself is considerable. Pre-trial orders of one kind or another are frequently necessary to ensure that a case is ready for hearing. Lawyers refer to this stage as the ‘interlocutory’ stage. A Chairman sitting alone deals with most interlocutory matters. This means that matters can be disposed of without having to convene a full tribunal. There are three main types of interlocutory hearing: 1.

Preliminary hearing.

2.

Pre-hearing review.

3.

Directions hearing.

Preliminary hearings A preliminary hearing will usually be about one specific issue only. Such issues might include the entitlement of the employee/ex-employee to bring the claim; for instance in unfair dismissal where there is insufficient service and the claim is not linked to sex or race discrimination. Or whether the claim has been lodged in time – taking the three month rule into account. (See also Chapter 3, section 3.)

Pre-hearing reviews It is in the interests of everyone concerned – both the parties and the tribunal – that very weak cases or defences are identified at an early stage and, wherever possible, dropped or struck out if they have little or no prospect of success. PHR’s are effectively a sifting process to sort out the weak cases from the strong. Either party, by making an application in writing to the Regional Secretary can initiate the process when the question of whether or not to hold a PHR will be determined by a Chairman. If the Chairman is not prepared to accede to the

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request, the Regional Secretary will write to the party that requested the hearing and notify them accordingly. A Chairman may decide on his or her own motion to hold a PHR as part of the case management process. A chairman may order a pre-hearing review to: •

determine an interim or preliminary matter

•

Issue directions to the parties

•

order payment of a deposit, or

•

consider any oral or written representations or evidence.

Notwithstanding the preliminary or interim nature of a PHR, a case may be struck out at the PHR stage where in the Chairman’s view a claim or response is scandalous, unreasonable or vexatious. Alternatively, if the tribunal considers that the contentions put forward by any party have no reasonable prospect of success, the tribunal may make an order against that party requiring the party to pay a deposit of an amount not exceeding £500 as a condition of being permitted to continue to take part in the proceedings relating to the matter in question. The PHR may be conducted by the usual panel for a hearing consisting of two panel members and a Chairman, or by a Chairman alone. The hearing will be held in private and either party may be present and make oral representations to the tribunal. The tribunal, or Chairman, as the case may be, holding the review must consider the Originating Application, the Notice of Appearance, any written representations of the parties, and any oral arguments put to them. A tribunal may decide of its own motion to hold a pre-hearing review if it considers that either party’s case is weak. Alternatively either party may seek a hearing. The Employment Act 2002 gave tribunals the power to strike out cases that it considers weak with no prospect of success. As with a preliminary hearing, any application for a pre-hearing review should include: •

the names of the parties in the case

•

the case number

•

a statement setting out why the hearing is being sought

•

a request that the case be listed for a pre-hearing review.

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The parties will not be permitted to give evidence either in documentary form or via witnesses. However, written representations may be allowed. These can contain extracts from witness statements and it is to be recommended that the employer sends an abbreviated Chronology to the Chairman. The Chairman will decide on the order of the proceedings and can invite either party to go first. It is rare for a tribunal to find that either party does not have reasonable prospects of success. If, however, the tribunal does reach this conclusion it will record its decision in summary form. There is no requirement for the tribunal to give an extended version of this. The tribunal will then issue a costs warning to the effect that should the party with the weaker case proceed to a full hearing costs may be awarded against them. The Chairman has the power to order any party to deposit a sum of money, not being more than £500, within 21 days of the promulgation of the order as a precondition for the proceedings continuing. That sum is then answerable, primarily, for any costs awarded to the other party in those proceedings and secondly, for any costs awarded against the depositor in any other tribunal proceedings. Only after this has happened can the original deposit or any balance be returned to the depositor. A failure to comply with an order to pay a deposit will lead to the concerned party’s claim or response being struck out. Such an order and the tribunal’s reasons, must be recorded in summary form with a copy of the document being sent to each party. This will be accompanied by a note explaining that if the party against whom the order is made persists in participating in the proceedings he or she could have an order of costs made against them and, as a result, end up losing their deposit. Before making such an order for a deposit to be lodged, the tribunal must reach the conclusion that the contentions being put forward by a party have no reasonable prospects of success. A pre-hearing review can be a useful step to follow in getting weak cases identified at an early stage. On most occasions, however, any matter which requires evidence, particularly oral evidence, to succeed, will lead the tribunal to allow the matter to proceed to a full hearing where such evidence can properly be heard and tested. This step can, however, demonstrate to the claimant that the respondent is serious in their intent to defend the claim, that they are required to put some work into prove their case and that proceeding to tribunal is more than just simply completing an ET1 then sitting back and letting the respondent do all the work.

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It can also be a very useful ploy in the process of initiating a more flexible attitude in the claimant during settlement negotiations. None of the panel members involved in the pre-hearing review will be able to take part in any subsequent full hearing. Nor will the tribunal hearing the full case be aware that a pre-hearing review has occurred.

Directions A tribunal may at any time, on the application of a party or of its own motion, give such directions on any matter arising in connection with the proceedings as it appears to the tribunal to be appropriate. Directions may include any requirement relating to evidence, including the provision and exchange of witness statements, the provision of further particulars, and the provision of written answers to questions put to either party by the tribunal. The tribunal may also, on the application of a party or on its own motion, require the attendance of any person, either to give evidence or to produce documents or both and may determine both the time and place at which the person is so to attend. A failure to comply without reasonable excuse can lead on summary conviction to a fine. The tribunal also has the power to make an order in respect of costs and to strike out the whole or part of the originating application, or the notice of appearance and, where appropriate, direct that a respondent be debarred from defending the case altogether. In practice either party (other than a respondent who has not entered an appearance) may at any time apply for ‘directions’ in connection with any matter arising out of the proceedings. An application for directions – unless made at the hearing – should be made in writing to the Secretary of the Tribunals, setting out the title of the proceedings and the grounds upon which directions are sought. Increasingly tribunals are using directions hearing, to improve the case management of proceedings and to ensure that both parties understand clearly the wishes of the tribunal in how cases are to be dealt with. Without doubt this speeds up proceedings and concentrates minds. Any order made at a hearing for directions is an interlocutory order and, in not coming within the scope of the specified regulations, is accordingly excluded from the definition of being a ‘decision’. It follows that a tribunal has no power to review such an order, because a tribunal can only review decisions. This does not mean that when an order is made that it cannot be challenged. Most orders

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are made ‘ex-parte,’ that is in the absence of the party against whom the order is made. For this reason the party against whom it is made can challenge any ex-parte decision. Again, any challenge in the first instance should be in writing setting out the grounds upon which the challenge is being made. As a hearing for directions is not a ‘hearing’ for the purposes of the rules: •

there is no requirement that 14 days clear notice of the date appointed for a hearing to be given

•

representations in writing do not have to be presented at least seven days before the hearing for directions, with a copy being sent to the other party, as is required under the rules governing hearings

•

parties have no right under the rules to give evidence or to call witnesses, and the almost invariable practice is not to allow oral evidence to be given

•

every such hearing should take place in private, and that is indeed the practice

•

the determination of the Chairman on such an occasion, and any order made, is not a decision and therefore a reasoned judgement is not required, although it is desirable that the Chairman should make a brief note of the reasoning for the ruling, and should communicate this to the parties

•

neither a Chairman, nor a full tribunal, has the power to review any interlocutory order.

The four most common orders made at the interlocutory stage are: 1.

orders for further and better particulars (about either the claim or the defence)

2.

orders for the production of documents for inspection

3.

striking out orders, together with orders or directions for specific cases to be heard by a Chairman sitting alone without lay members

4.

witness attendance orders.

Tribunals are increasingly using Directions Hearings to speed up the operation of the tribunal system and ensure that the objectives of the system are met.

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Further and better particulars The power to order further particulars to be provided is a power to require a party to furnish further particulars of the grounds upon which the party in question relies, and of any other facts and contentions that are relevant. This can be a very useful step in flushing out essential information and forcing the other party to think seriously about the case. Again it puts pressure on the claimant and may aid settlement negotiations as a consequence. Particulars will only be ordered about that which is stated on the application, or the Notice of Appearance, as the case may be. The tribunal does not have unlimited powers to order interrogatories as has the High Court or the County Court. However, there is a power to require a party to give a written answer to any questions if a Chairman considers that the answer may help to clarify any issue. The Employment Appeal Tribunal has said that the principles that should apply to the ordering of particulars are that: •

the parties should not be taken by surprise at the last moment

•

particulars should only be ordered to do justice to the case, or to prevent an adjournment

•

any order should not be oppressive

•

their purpose is to identify issues, not to elicit evidence

•

complicated pleadings should not be encouraged

•

in complicated discrimination cases a more formal approach is desirable.

Note: Particulars relating to evidence will not be ordered. The purpose of the hearing is to hear the evidence of the parties. Evidence is the tool that confirms material facts, it should therefore be given at the full tribunal hearing. Only particulars of the ‘facts’ to be relied on by the other side can be obtained. The main purpose in obtaining further particulars is to enable a party to know in sufficient detail the nature of the case that will be put against them at the full hearing. Should the party against whom such an order has been made fail to comply with it, wholly or partially, any tribunal which hears the case may dismiss the whole, or any part of either the claim or the defence, and direct that the party that has failed to respond to the order be debarred from either pursuing or defending the case. Notice of intention to dismiss, strike out or debar must first be given in writing.

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Discovery and inspection of documents Employment Tribunals have the same power as the County Court to order parties to produce documents for inspection by a party’s opponents. Chairmen of tribunals and the tribunals themselves have an almost unfettered discretion to order, or refuse to order, the production of documents. Tribunals expect parties to deal with the production and inspection of relevant documents by mutual agreement. Only where this has failed should the tribunal be approached for an order, by letter to the ROET. It is advisable that the initial exchange of correspondence seeking discovery of documents also be copied to the ROET. The party seeking inspection should specify precisely the documents which they seek sight of and explain the circumstances which have led them to make the application and the relevance of the documents to the issues. It is recommended that applications are as specific as possible. If they are too wide in scope they risk being rejected. Again, striking out powers exist where a failure to comply with an order occurs.

Witness orders Where a party has requested that a person attend a tribunal to give evidence and that person refuses to attend, a witness order can be sought from the tribunal compelling the attendance of the person concerned. Such a witness order will only be made on the instructions of a Chairman. A letter giving the following information should accompany any application for a witness order: •

the full name and address of the required person (where known)

•

the relevant information that the witness can provide

•

how essential the evidence that they can give to the tribunal is

•

whether or not the person concerned has been requested to attend and has refused.

A witness order may be set aside by a Chairman before the hearing, or by the full tribunal at the hearing. Witness orders should be used with discretion. The question should be asked as to the value of the evidence given by a person who does not wish to give evidence. Clearly the facts that are sought are in the main only going to be drawn

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out through cross-examination. The problem here is that you cannot crossexamine your own witnesses unless, and this is a rare occurrence at tribunal, you can get the tribunal to accept that the witness is hostile and thus allow crossexamination. A hostile witness can be of more hindrance than help.

Striking out Striking out an originating application or a notice of appearance is a severe measure that tribunals only use in certain extreme situations. A tribunal’s powers of striking out can be used when: •

an originating application or a notice of appearance is considered to be scandalous, misconceived or vexatious

•

the manner in which the proceedings have been conducted by, or on behalf of, the particular party has been scandalous, unreasonable or vexatious

•

a case has not been prosecuted

•

there has been a failure or refusal to comply with a witness order, an order for disclosure or inspection of documents or any directions.

Summary •

Pre-trial orders are referred to as interlocutory matters.

•

Most of these are dealt with by a Chairman sitting alone.

•

Either party can apply to the Employment Tribunal for directions at any time.

•

Hearings for directions are known as preliminary hearings.

•

Any order made at a preliminary hearing is not a decision – decisions can only be reached on matters heard by a full Employment Tribunal panel (with limited exception) – most are made ex-parte (i.e. in the absence of the other party) and as such can be challenged by the absent party.

•

All interlocutory orders can be challenged.

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•

•

The four most commonly made orders are: 1.

orders for further and better particulars

2.

orders for the production of documents for inspection

3.

striking out orders

4.

witness orders.

PHRs are principally sifting processes to sort out weak cases at an early stage.

•

PHRs can be initiated by either party – with the Chairman deciding whether a PHR is appropriate.

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The PHR will be conducted by a full Employment Tribunal panel who will reach a decision.

•

The Employment Tribunal panel conducting a PHR has the power to strike out a claim – they can also order the payment of a deposit against future costs.

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Chapter 8 Preparing for the hearing The first steps .......................................................................................85 Preparing witnesses and witness statements...................................86 Documentary evidence .......................................................................89 Written evidence and the ‘bundle’.....................................................89 Researching legal precedents.............................................................92 Summary ..............................................................................................93

Chapter 8 Preparing for the hearing

The first steps Where parties are legally represented, the stages involved in the preparation of an Employment Tribunal case for hearing do not differ greatly from those involved in litigation generally. However, whilst these stages may be a matter of routine for solicitors and experienced representatives, the preparatory requirements will not be second nature for those called upon to represent at tribunal infrequently. It is of vital importance that adequate preparation is carried out to prepare for any Employment Tribunal hearing. Once the date of hearing is known therefore the representative should attend to the following: •

Inform all witnesses of the hearing date. If any important witnesses have difficulty in attending on this date seek a postponement immediately. Write to the tribunal setting out the reasons why a postponement is required and give alternative dates to the tribunal when all of the witnesses will be available.

•

Reacquaint all witnesses with the evidence they will be required to give. And draw up Witness Statements. Ensure that witnesses have sight of any documents that will be put to them in the course of their evidence and prepare them for the proceedings generally.

•

Carry out the detailed preparation necessary to ensure that the case is properly presented at the hearing.

•

Arrange the documents that will be presented to the tribunal in the form of a ‘bundle’.

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Wherever possible agree the contents of the bundle with the other side.

•

Prepare a list of case authorities which can be cited at the hearing.

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Preparing witnesses and witness statements It is important that witnesses know what to expect at the Employment Tribunal hearing. Giving evidence can be a stressful experience even for the most hardened. The procedure that will be followed from time of arrival, through to being sworn in, to handling the questions that will be asked, both in chief and under crossexamination – all need to be thoroughly explained by the representative to their witnesses so that they know what to expect in advance. Witnesses should be advised that when giving evidence they should: •

answer only the question asked

•

stick to the point and not ‘wander’, or answer the question that they think will follow on from the one that they have been asked

•

speak slowly and clearly, remembering that the Chairman will be recording their replies in longhand. It is a good tactic to watch the Chairman’s pen whilst giving evidence and pause occasionally until the Chairman gives a signal to carry on

•

when being cross-examined, refrain from getting into a direct confrontation with the person asking the questions. It is helpful here if eye contact is avoided and replies directed at the panel, rather than the questioner

•

not be evasive, or ‘clever’ with their replies. If a witness does not know the answer to a question then they should say so. If they do not remember a fact (even if they ought to) they should say so. If they are asked a question that they do not understand, again they should say so.

If witnesses have any concerns at all they should be encouraged to raise them prior to the hearing date, so that they can be adequately dealt with ahead of the hearing. Increasingly tribunals are making use of, indeed insisting upon, the production of witness statements setting out exactly what the witness will say when called upon to give evidence. Representatives should therefore take early steps to prepare these statements following common sense rules. The statements should be typed up, preferably on A4 paper with the witnesses name address and occupation set out clearly in the heading. The Statements should be written in the ‘first person’ using terms such as ‘I saw x on the morning of 25th May 2002 and he told me………’ etc. Any attempt to change the style of language used by the witness or to increase the formality or sense of the witnesses usual style of speaking should be avoided. Tribunals are not looking for statements written as if they

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had been drafted by a police constable but rather are seeking plain direct statements setting out the information that the witness has direct knowledge of which is believed to be germane or helpful to the case and the tribunal in understanding the facts and reaching a decision on them. The statements should be signed and dated by the witness before submission to the Employment Tribunal. The tribunal may require the witness to read out their statement at the hearing or swear that the statement accurately covers their understanding of the events upon which they have been called to give evidence. Immediately prior to the hearing, witnesses should be reminded of the facts that they have supplied regarding the matters under question. They should re-read their witness statement and understand all of the questions that they will be asked to respond to. Any documents that they will be referred to should be shown to them in sufficient time for them to read them and fully understand how they mesh with their evidence in chief. It is not a good idea to coach witnesses or suggest answers to them. It is helpful, however, if they understand how their evidence fits into the overall scheme of the presentation of the case, and the areas of evidence that other witnesses will be covering. Witnesses should be reminded that they cannot take notes into the witness stand with them – unless they are contemporaneous notes i.e. notes taken at the time of the event.

Case preparation The overall plan of the case presentation needs to be carefully thought through. The matters that need to be addressed at this stage are: •

the essential facts that it will be necessary to prove, or disprove, in order to win the case

•

the evidence necessary to prove, or disprove these facts

•

the order witnesses should be called (see Note 1 below)

•

the availability of documentary evidence to support the respondent’s contentions

•

the availability of relevant case law to refer to, and use as a guide at the hearing

•

the degree of knowledge that is known about the arguments to be advanced by the other side (see Note 2 below)

•

the witnesses who will be called by the claimant – and the questions that should be prepared for them.

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Note 1 It is inevitable that the first witness to be called at the hearing will take the brunt of the questions surrounding the issues at the heart of the case. Not only the claimant, but also the tribunal panel members, will take the opportunity to seek out the main details of the case from this witness’ evidence. Clearly therefore care should be taken to select a strong confident witness for this role – someone who can tell the tribunal, with authority, about the nature of the respondent’s business and set the scene within which the events in question unfolded. Other main players should follow this first witness, with corroborative and peripheral witnesses following on behind them. Care should be taken to field witnesses with first hand knowledge of the matters on which they are to give evidence. If five different people attended a meeting, which has been recorded with the notes/minutes being available as evidence for the tribunal, it should not be necessary to field all five to give evidence to the tribunal. The person chairing the meeting, together with the person who took the notes, should be adequate. Only if the tribunal request the opportunity to hear all five should they be called. The representative should try to keep the pace of the evidence under their control, and hold the interest of the tribunal. Wherever possible, the representative should avoid boring the tribunal with a constant repetition of the same facts from different witnesses.

Note 2 During the communications that precede the hearing it should be possible to get a fairly accurate insight into who the other side intend to call as witnesses. From this information, a list of questions can be prepared to put to these witnesses in cross-examination. Care should be taken at the hearing to avoid following these questions too rigidly. The proceedings will take on a shape of their own as they proceed. It is important that representatives allow themselves the freedom to adapt and reshape their questions to fit the proceedings, and the evidence that has been given by the witness in chief. However, a list of the main relevant points to put to the other side’s witness can be a very useful starting point to have available at the hearing.

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Documentary evidence It is important to distinguish between the various types of documents that will be produced in a hearing. In the main there are four different types: 1.

Written evidence. This evidence may include witness statements, or affidavits (that is a sworn statement), or an agreed statement of facts. It should also include offer letters, disciplinary letters, copies of disciplinary or appeal procedures, rules and the like. Any documentation that the parties intend to produce to support the facts of their case will come under this heading.

2.

Representations in writing. These cover the pleadings, the ET1 and the ET3, answers giving further and better particulars and skeleton arguments.

3.

Legal sources. These set out the substantive and procedural rules that the tribunal must follow. It includes all legislation, case law, tribunal rules of procedure etc.

4.

Decisions. This applies specifically to decisions made by the tribunal for a particular case. Ultimately the outcome of the proceedings will be presented in a written decision, but this heading also includes any orders issued by the tribunal for discovery, witness orders etc (although strictly speaking these are not ‘decisions’).

Written evidence and the ‘bundle’ The papers that a representative intends to rely on at the hearing must be presented to the tribunal in the order and sequence that they are to be used. Producing a numbered ‘bundle’ of documents for use at the hearing does this. The supporting documentation that is sent with the notice of hearing will contain instructions on this matter. It will advise that each party should notify the tribunal and each other of any papers that they intend to rely upon at the hearing. Professional advisers are specifically asked to prepare a bundle – and told that wherever possible this should be agreed between the parties and contain the papers that both sides intend to rely upon. Agreeing a bundle does not mean that each party accepts that every piece of paper contained within it is true. It simply means that they have consolidated the papers into one bundle of documents for the use of the parties and the tribunal on the day of the hearing. Where papers that are included are not agreed, or

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are in dispute, this fact should be notified to the tribunal either in writing or at the beginning of the hearing itself. It is a considerable advantage to the tribunal and the efficiency of the proceedings if an agreed bundle can be produced for the hearing. In an unfair dismissal case the respondents may wish to include the following in their written evidence (bundle) to be presented to the tribunal: •

the Originating Application (ET1)

•

the Notice of Appearance (ET3)

•

any important letters exchanged with the ROET during the lead up to the hearing

•

any orders issued by the tribunal concerning the case

•

the statement of terms and conditions (Contract of Employment statement) applicable to the claimant

•

disciplinary rules and procedures

•

grievance procedures

•

the disciplinary record of the claimant

•

any letters exchanged between the parties about the record

•

notes of any disciplinary meetings, grievance meetings or investigations involving the claimant

•

the letter of dismissal

•

the appeal procedure that applied to the claimant

•

copies of any appeal letters and notes of any appeal proceedings

•

copies of pay slips or wage records showing the claimant’s earnings

•

witness statements

•

any other document, letter, procedure, policy etc that will help the tribunal to understand the essential facts of the case.

The bundle itself should be assembled in date order. The first documents that should be shown are the ET1 and the ET3. In the main these will make up the pleadings in the case. These should be followed by any significant letters exchanged with the ROET and any orders issued thereto. Finally, any letters relevant to the proceeding, or other documents, minutes of meetings etc should be arranged in date order with the oldest documents coming first. The tribunal should, by reading through the bundle, be able to follow the story sequentially

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wherever possible. Witness statements and any ancillary documents, rules, procedures and policies etc should be at the rear of the bundle. Each page should be sequentially numbered with the number being legibly entered at the bottom right hand corner of the page. The bundle should have a clear index behind the cover sheet setting out the title to the documents, letters etc that are included, together with the relevant page numbers. The cover sheet itself should be clearly marked with the name of the claimant and the respondent, the case number and the date of the hearing. The bundle should be secured firmly at the top left-hand corner, or in such a manner that allows for ease of turning over the pages without obscuring parts of the document. Seven copies of the bundle should be produced viz: •

One master copy containing the original documents. This should be retained in a loose-leaf form for ease of running off further copies if required.

•

Three copies for the tribunal panel members.

•

One copy for the use of the claimant or their representative.

•

One copy for the witness stand.

•

One copy for the use of the representative.

The representative’s copies together with the Chronology are the working documents that will be constantly referred to by the representative during the hearing. This copy will have important notes annotated to it. It can be marked in coloured highlighter to ensure that the main points can be picked up quickly and easily during the cut and thrust of the proceedings. It is not recommended that the master copy be used for this purpose. It can be awkward and embarrassing if this bundle contains the notes and reference points marked onto it. These will need to be erased if extra copies, for whatever reason, are required to be produced. The Chronology will by now have the actual bundle page numbers shown in its third column. The bundle and the Chronology must link together. Events, dates, witnesses and page numbers should be double-checked to ensure that this is the case. Spare copies of the Chronology can be taken to the hearing. Whilst not being evidence they may be useful to help the tribunal if they are having difficulty in following the events in question or arranging these in the correct sequence.

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The claimant’s copy of the bundle should be dispatched to arrive with them, or their nominated representative, not later that seven days before the hearing date. A dated covering letter should be included and a copy retained as evidence that the bundle was sent on the date shown. The copies for the tribunal should be hand delivered to the clerk of the tribunal on the day of the hearing prior to its commencement. Employment Tribunals do not like having these documents posted to them or delivered before the actual date of hearing.

Researching legal precedents Employment legislation, as all other legislation, only became ‘good’ law with the passing of time and the development of case law. Terms such as ‘fair’ and ‘unfair’, ‘reasonable’ and ‘unreasonable’ are not capable of precise definition. What may be reasonable to one party may be completely unreasonable to another. Hence the importance of case law, not only to employment legislation, but also to legislation in general. Case law defines the ‘edges’ as it were between ‘fair’ and ‘unfair’, between ‘reasonable’ and ‘unreasonable’. As such it provides guidance and direction to representatives on what has been decided in the past on similar cases. Rulings of a higher court are binding on the lower courts. Hence the decisions of the Court of Appeal are binding upon the Employment Appeal Tribunal. Similarly judgements handed down by the Employment Appeal Tribunal are binding on Employment Tribunals. Employment Tribunal decisions are not binding on other tribunals, although they can be persuasive. It is useful therefore for representatives to have access to an up-to-date source of case law. A good employment law handbook, or access to an employment law website of which many are available, can be invaluable to representatives. Each area of employment legislation has attracted a significant body of case law, and the experienced representative will be aware of the leading cases that give guidance on any particular matter that they may be handling. If they are not aware of the leading cases some time spent in basic research will identify these relatively easily. A thorough review and understanding of the leading cases that apply to the matter in hand will be a distinct advantage. The representative will know that they are building their presentation and line of argument on ‘firm ground’. An examination of the relevant case law early on in the preparations will help to rate the prospects for success and be a good indicator as to whether or not to push for an early settlement.

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A failure to be aware of the leading cases can lead representatives to develop their arguments in a ‘blind alley’. They can find themselves pursuing arguments that are easily disposed of by a tribunal Chairman with a good understanding of the relevant case law. Most tribunal Chairmen are aware of the relevant case law that applies to the case they are hearing and will advise their panel members accordingly. Certainly it will be the case where a full-time Chairman sits. Part-time Chairmen are another matter, however. Depending on how long they have been appointed, and their previous experience as solicitors or barristers will determine how knowledgeable they are about employment law. Representatives will not know in advance how experienced their Chairman is. It is a good idea therefore to go well armed with copies of the relevant case law to hand in to the tribunal clerk prior to the commencement of the proceedings. Case law should be sparingly used during the closing address. If it is relevant then it should be referred to by linking it to the evidence that the tribunal has heard. Tribunals as ‘bodies of fact’ reach their decisions on the basis of the evidence heard by them during the course of the case. No amount of case law will help a representative unless it broadly matches the case that has been presented to the tribunal. Caution therefore is the watchword when using case law. If bandied around too freely it can, like the boomerang, rebound to a representative’s disadvantage.

Summary Representatives should: •

inform all witnesses of the hearing date as soon as it is known

•

seek a postponement where major witnesses cannot attend on the chosen date

•

arrange and prepare documents and witness statements for presentation to the Employment Tribunal and the other side

•

re-acquaint witnesses with the evidence that they are required to give and prepare them for the hearing generally

•

prepare legal precedents where these are relevant

•

review and update the Chronology

•

decide on the order of witnesses to be called.

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Case preparation: •

The overall presentation of the case needs to be carefully thought through.

•

The order in which witnesses are to be called needs to be finalised.

•

Documentary evidence needs to be prepared.

•

‘Bundles’ need to be prepared and a copy dispatched to the other side seven days before the nominated hearing date.

•

The Chronology needs to be updated to ensure that page numbering in the ‘bundle’ matches the page numbers referred to in the third column of the Chronology.

•

Legal precedents need researching and copies prepared for the hearing, all legal precedents should be used sparingly.

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Chapter 9 The hearing Preliminary matters .............................................................................99 Opening statements...........................................................................100 Calling witnesses and evidence in chief..........................................101 Cross-examination.............................................................................105 Re-examination ..................................................................................108 The closing address ...........................................................................108 General hints ......................................................................................111 Summary ............................................................................................111

Chapter 9 The hearing Good preparation is the key to a stress-free Employment Tribunal hearing. Good preparation commences with the basics. A representative should ensure that they have the following items with them when they report for the hearing: •

Six bundles of documentary evidence.

•

The notice of hearing – in case of confusion in the ROET administration.

•

Three/four pencils and/or pens.

•

A highlighter, marker pen and a red or coloured pen.

•

An A4, or legal note pad – preferably one with a good margin down the side.

•

A good employment law reference book.

•

A box of headache pills and some peppermints or boiled sweets!

Keeping track of the proceedings requires concentration. Taking a full set of notes whilst the proceedings are ongoing, and particularly when the other side’s witnesses are giving their evidence in chief, is essential. The A4, or legal pad, with each page dated and numbered, together with the pencils or pens, will enable this to happen easily. The coloured pen or marker can be used to underline or record, in the relevant place in the notes, questions or points that the representative wishes to raise during cross-examination of the other party’s witnesses. As far as the representatives’ own witnesses are concerned, it can be helpful to mark those segments of their evidence that may be useful to refer to during the closing address. Marking in colour allows for easy reference during busy proceedings. Finally, the margin can be a good place to record points and make notes that draw the representative’s attention to any aspect of the evidence that is particularly significant. The significance of the headache pills requires no explanation. Employment Tribunal representation can be stressful. Nothing can be worse than the discomfort of a tension headache during the proceedings to distract or impair performance.

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Representatives should aim to be punctual and arrive with time to spare before the time stated for the commencement of the hearing of their case. A good rule of thumb is to aim to have checked into the ROET reception at least 30 minutes before the time scheduled for the hearing. On arrival the representative should register at the reception desk, giving their name and the names of their intended witnesses. They should then retire to the respondents’ waiting room. The representative is the ‘ring master’ of the proceedings as far as the respondents’ party is concerned. They should ensure that witnesses are prepared for the events ahead of them, that they are as comfortable as possible with the role that they are required to play and that they are aware of the ‘bundle’ of documentary evidence and the page/s to which they will be referred. When representatives are satisfied that their witnesses have arrived and are comfortable, they should check whether the other side has registered and should, out of courtesy, contact them in their waiting room and introduce themselves. This initial contact can be particularly useful as it enables both sides to informally cover any matter that may be raised at the hearing. The opportunity can be taken to confirm whom the other side is calling as witnesses and thus avoid any nasty surprises. A final opportunity can be taken to sound out the other side on possible grounds for settlement or withdrawal. If the prospect of a settlement does arise then contact should be made with the clerk of the hearing to notify the Chairman that the parties would find it useful to have some time to explore a possible settlement at this late stage. This request is normally granted with the proviso that the parties keep the Chairman advised if the discussions are likely to be protracted. This avoids the tribunal wasting time that could be allocated to other cases. Tribunals sit between the hours of 10.00am and 4.00pm with an hour for lunch. Their time is precious. The clerk to the tribunal plays an important role. This person is the representatives’ link with the Chairman outside of the actual hearing room itself. The clerk will seek out the representatives in the waiting room and take down particulars of all witnesses, enquire as to their preference when taking the oath or affirming, and collect the bundles to be passed to the panel members. It is a sensible approach to make friends with the clerk. They can, and on occasions do, impart useful information on the style and mood of the Chairman and the panel members. They can advise on whether it is good idea to raise matters with the Chairman ahead of the actual hearing or to wait until the hearing itself. A few minutes spent chatting to them can be time very well spent.

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From their inception Employment Tribunals have been encouraged to aim to achieve the objectives of simplicity and informality when conducting their proceedings. In practice the style of the Chairman will determine the overall style of the hearing. Some Chairmen seek to keep the proceedings as relaxed and informal as is commensurate with running a fair hearing. Others opt for a more formal brisk and brusque style. Irrespective of the style adopted, representatives should not lose sight of the adversarial nature of the proceedings. Each party takes full responsibility for the conduct of their case, calling witnesses, putting relevant documents into evidence, cross-examining the other side’s witnesses and making a closing legal submission. The only restriction on the tribunal’s discretion comes from the Employment Tribunal Regulations themselves and the rules of natural justice which apply to all proceedings of a judicial nature. These rules simply stated are that: •

each party must be given a proper opportunity to be heard and to present their case fully

•

there should be no bias or conflict of interest on the part of those hearing the case

•

each party is entitled to know the case they have to meet

•

neither party should be denied the right to present evidence, call witnesses or cross-examine the witnesses of the other side.

The format of the proceedings, once they commence, rarely varies. In an Unfair Dismissal case, where the respondent admits dismissal, the order of the proceedings is: •

Employer (respondent) opens.

•

Respondent gives and calls evidence.

•

Employee (claimant) cross-examines employer’s witnesses.

•

Panel members question respondent’s witnesses.

•

Respondent re-examines own witnesses (where necessary).

•

Claimant gives and calls evidence.

•

Respondent cross-examines claimant’s witnesses.

•

Panel members question claimant’s witnesses.

•

Claimant re-examines own witnesses (where necessary).

•

Claimant’s closing address.

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•

Respondent’s closing address.

•

Tribunal decision.

When first called into the hearing room the respondent’s representative and chief witness or assistant should sit on the left facing the panel. The claimant will sit on the right facing the panel. When the panel enters the room the parties should stand until advised by the Chair to sit again. Thereafter all of the proceedings are conducted from a sitting position with the parties only rising when the panel members leave or re-enter the room. The Chairman should be addressed as Sir or Madam, as appropriate, with the panel members being addressed similarly, on the rare occasions when the representative actually addresses them. Questions or points relating to panel members are usually referred through the Chair with reference to the panel member on your right or left as the case may be.

Preliminary matters Any preliminary matters that need dealing with should be raised at the beginning of the proceedings – these may include requests for adjournments where witnesses have been delayed, or information has been passed to the representative from the other side at the last moment, requests for the hearing to be conducted in private etc. It is a good idea to clarify any matter that is of concern to the respondents at this time, including any late questions of jurisdiction or amendments to the pleadings. If the other side seek unwarranted adjournments, then the representative should be prepared to raise the question of any resultant costs they will incur – particularly when the reason for the adjournment could have been anticipated and raised earlier. During these early exchanges the representative should take the opportunity afforded to assess the panel generally and the Chairman in particular. What is their style? Are they relaxed and informal, or are they brisk and professional? This evaluation will give clues on the best way to present the case to their best possible advantage. Clearly if the Chairman is a ‘no nonsense’ individual the representative should avoid time wasting and procrastination. If, on the other hand, the Chairman is relaxed and informal then the representative should avoid over formality in the conduct and presentation of the case. There is often confusion about who goes first in the proceedings. In Unfair Dismissal cases, where dismissal is admitted, then the respondents will present

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their evidence first. Whilst the burden of proof is neutral, the onus is on the dismissing organisation to set out for the tribunal the reason for the dismissal and show that the dismissal was fairly carried out. When dismissal is denied, it is for the ex-employee to present their case first. Unless they can convince the tribunal that there was in fact a dismissal, the question of the fairness or unfairness of the employer’s actions will not arise. The same principle applies when the allegation is that the employee was dismissed for trade union activities.

Opening statements The right to make an opening statement is a matter wholly for the tribunal’s discretion. In England and Wales, tribunals commonly allow such statements to be made in cases where the issues are not clear from the pleadings or where the case looks to be a complex one in fact or in law. A representative who thinks that an opening statement will help the tribunal should ask permission to make one and should give their reasons for the request. If the tribunal agrees to this then the opening address should: •

be brief – with only the essence of the case being given together with the relevant submissions that will be made

•

indicate the evidence proposed to be presented and who will give it

•

refer to any questions of law which seem to arise that will require the tribunal’s consideration.

The purpose of the opening statement, where given, is to outline the context within which the evidence will be given. In complex cases this will help the tribunal understand the setting in which the question/s they are being asked to adjudicate upon arise. On the whole tribunals prefer to proceed straight to the evidence in chief and allow the context to emerge along with the evidence. No part of any opening statement will form part of the recorded evidence of the tribunal. This is because it is not given on oath and thus has not been tested and ‘proved’. Any facts and contentions referred to in the opening address must be proved by either oral or documentary evidence during the proceedings if they are to be taken into account by the tribunal in their decision making process.

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Calling witnesses and evidence in chief The purpose of calling witnesses is to enable them to tell the tribunal what they know, drawn wherever possible from their personal knowledge of the events in question. All witnesses are either sworn in by taking an oath on the Bible or other relevant holy book, or affirming that their evidence will be truthful. The clerk to the tribunal will have checked with the witnesses prior to the commencement of the proceedings to enquire which form of oath taking is appropriate to them. Having taken the oath witnesses are first open to questions from the side that has called them to give evidence. This is called giving evidence in chief. The art of questioning ones’ own witnesses is to allow them to give their evidence in their own words within the framework that the representative creates for them by the questions asked. In asking the questions the representative cannot suggest the answers to the witness as this would be considered as leading the witness. For instance the representative could not ask a question such as: “Isn’t it true that on the morning of the 17 March the claimant admitted to you, during a disciplinary meeting, that he had punched the foreman in the face the previous day?” What the representative could ask is: “Did you meet with the claimant to discuss the matter under question?” “When was this meeting?” “Was this a formal or informal meeting?” “Where was it held?” “Who was present at the meeting?” “What did the claimant tell you about the events of the previous day?’” Or alternatively: “Did you meet with the claimant to discuss the events of the previous day?” “Would you tell the tribunal about this meeting, when it occurred, who was present and what was said of relevance to this hearing?” The personal style of the representative, coupled with the competence of the witness, will determine the appropriate approach to be used. What the representative should avoid is asking the witness closed questions. These are questions that can only be answered either ‘yes’ or ‘no’. What the tribunal want is to hear the witness tell them under oath those things that they know which

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are relevant to the matter/s in question. The job of the representative is to ensure that all of the relevant facts are presented to the tribunal through the presentation of both oral and documentary evidence. That each witness has every opportunity to tell ‘his or her story’ to the tribunal. The relevant facts will have been established long before the hearing in line with the strategy developed by the representative in preparing for the hearing. The representative should avoid asking any questions of their own witnesses to which they themselves do not know the answer. Where the witness is unable to recall evidence that they should be able to recall, the representative may need thorough careful questioning to break the question down into smaller segments which in themselves will prompt the witnesses memory. Such as: “What did you do on the morning of 17th March, can you recall?” “Did you meet with the claimant that morning?” “What was the purpose of that meeting?” “Did you discuss the events of the previous day with him?” “What did he say?” “Who else was present at the meeting?” Whilst these questions get close to leading the witness, they are not sufficiently close as to cause a problem. On occasion, and where the facts in question are not disputed it may be possible to lead the witness. In such cases, permission should first be sought from the Chairman with reference to the fact that the opposing side do not dispute the facts in question. It is not unusual for the Chairman to interrupt the representative and take over the questioning if they want more information on a pertinent point. In this case it is prudent for the representative to ensure that they take a detailed note of both the question/s and the answer/s. These will without doubt be relevant to the panel in the final decision, for the Chairman will be concentrating on issues that they know are relevant to the proceedings. Such interruptions can be useful pointers to the way the tribunal are viewing the witness and the evidence that they are giving. On occasions, questions from the Chair can be intrusive and prevent the representative from presenting the evidence in the best interests of their client. In such event a gentle ‘shot across the Chairman’s bows’ by a comment such as: “I think it could be useful to the tribunal if I am allowed to complete my questioning of this witness first Mr/Madam Chairman” will alert the Chairman to the representative’s concern. In the event that the questioning is continuous, and in the

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opinion of the representative, unreasonable, then a firmer comment could be justified, such as: “I would ask the Chairman to record my concern that I am not being allowed to ask my questions of this witness, and present my case in the best interests of the respondents.” By asking the Chairman to record the representative’s concerns about the handling of the hearing, the Chairman will be alerted to the possibility of an appeal subsequently arising on the grounds that the interests of natural justice require it. This is an extreme course for a representative to take for it risks alienating the Chairman and the panel members. Representatives must ensure, however, that their client’s case is presented fully in every respect, and bullying or difficult Chairmen can be encountered whose style prevents the fair and proper presentation of a case. Unless concerns are recorded in the Chairman’s notes, then it will be difficult to substantiate an argument at a later stage that these concerns were raised and were of real concern to the respondents. It is rare for a representative to be prevented from following a line of questioning that is relevant to the facts of the case. An observant representative will know when evidence is being given that is of interest to the panel, for the Chairman will be recording this in the handwritten notes. When the Chairman is not writing, is perhaps leaning back and looking at the ceiling or gazing out of the window, this is a sure signal to the representative that the evidence being given is of no interest to the panel and they should quickly move on to the next significant point. The objective of evidence in chief is to convey the facts of the case to the tribunal in a way that holds their attention. The panel is entrusted with the job of reaching a decision on the matter – hopefully in the representative’s favour – clearly this will not be achieved if the panel members are bored by irrelevant or repetitive questions. It is important for the representative to be aware of the impact that the questions, and the answers being given to them, are having on the tribunal. The Chairman must record the main facts; usually this is done by the laborious process of the Chairman taking longhand notes of the relevant evidence during the proceedings. A wise representative will ensure that the pace of the questioning allows the Chairman adequate time to record what is being said and will slow their witnesses down when the speed and length of their replies makes note taking difficult for the Chairman. They will also move the evidence on when it appears that nothing of interest is being imparted to the panel.

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The advantage of hearing and seeing witnesses give oral testimony is never underestimated by tribunals. Factors such as the demeanour of witnesses, their degree of intelligence, coherence and plain believability can only be judged through oral testimony. This is its value and purpose. The representative must ensure that when questioning witnesses in chief they concentrate on the main issues: it is the quality, not the quantity of evidence that is important. The evidence must be relevant to the matters under consideration by the tribunal and help the tribunal to make up their minds as to what happened and who to believe, particularly when there is a conflict of evidence on a significant point. Documentary evidence can be used to best effect when it supports the oral testimony being given by a witness. Using the Chronology the representative can ensure that documentary evidence is introduced as the proceedings develop and the evidence demands. Having been introduced a tick can be placed alongside the relevant fact on the Chronology to indicate that it has been adequately covered. All courts, including Employment Tribunals, frown on hearsay evidence. Whilst the rules governing evidence at Employment Tribunals are not as strictly observed as in other courts, the question of hearsay evidence is still subject to the basic rule that the witness should only testify on matters that are first hand and known to be true by them. Evidence that they were told such and such by another is only evidence that a conversation took place between the two. It is not evidence that the events or facts related are true. Only by the other person in the conversation appearing and giving evidence can such facts be accepted as evidence. However, there are many circumstances in which hearsay evidence can be useful to a tribunal, particularly when it goes to the heart of why a party acted as they did. In such cases it may be allowed at the discretion of the Chairman. As a general rule first-hand hearsay evidence such as: “X told me that…” will be allowed. Whilst secondhand evidence such as “X told me that he had been told by Y…” will not be allowed. Care should be taken by any representative when seeking to introduce hearsay evidence. To avoid objections arising from the other side to such evidence, it is wise to seek the Chairman’s guidance on the matter before asking the question/s concerned. In this way the tribunal are alerted to the fact that the evidence concerned may be considered to be hearsay, and will understand the reasons why it is important and the context in which it should be viewed. On occasions witnesses will be present because they have been subject to a witness order requiring them to attend. The question of when a witness order should be sought is a difficult one to answer. Any witness who does not attend a hearing voluntarily to give evidence must be considered of diminished value. They are

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likely to be reluctant to testify, and may even be hostile to the interests of the party who forced them to attend. It is a golden rule that a party cannot cross-examine their own witnesses. It can therefore be very difficult to get such a witness to give relevant and helpful evidence. On the other hand they can be cross-examined by the other side and, as such, may very well be encouraged to make statements that are not at all helpful to the interests of the party that served them with the witness order. For these reasons the question and value of serving witness orders is one to be considered very carefully before proceeding to seek them. It can be possible to get the witness declared as ‘hostile’ and therefore open to cross-examination by the party that called them. This is a very rare occurrence, however, and is almost unheard of at Employment Tribunal.

Cross-examination When evidence in chief is completed a witness becomes available to the other side for cross-examination. The purpose of cross-examination is to test the witnesses evidence by putting to them facts or evidence that will be given to the tribunal and which may conflict with the evidence that they have given, or the particular slant that they have placed upon a fact or event, or which relates to matters of which the witness has knowledge that has not been fully explored during their evidence in chief. The opportunity also exists of course to shake the credibility of a witness, to probe and test exactly how good their memory or recollection of events really is and to put to them matters that they would prefer the tribunal were not aware of. Cross-examination is always a risky business. When cross-examining it will be helpful to be aware of three of points: •

Have clear objectives in mind regarding the information or objective that is sought. It may be that the witness has only told half of the story regarding a matter of importance. The cross-examination would then seek to draw out the other half of the story. It may be that a witness’ credibility needs to be shaken in the eyes of the tribunal. In which case, questions need to be directed to this end.

•

The purpose of cross-examination should be two-fold, to weaken the case for the other side, and to establish facts that are favourable to your own side. There are four basic techniques that can be valuable

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to achieve this end. They are confrontation, undermining, insinuation and probing. •

Representatives should avoid becoming emotionally involved in cross-examination. They should aim to use intellect to achieve the objectives chosen rather than emotion.

Unlike evidence in chief, during cross-examination the person asking the questions can suggest the answers to the questions posed. So relating to matters of the 17 March meeting, questions can be asked thus: “I put it to you that the meeting on the 17 March did not take place as you have testified?” “That in fact far from it being a properly constituted meeting, it took place in the main workshop?” “That the claimant in this case had no prior knowledge of the purpose of the meeting or the subject matter of the discussion that was to follow?” “The claimant will tell the tribunal when he gives evidence later today that he was not given the opportunity to be accompanied by a witness of his choice, and further that you appeared to have made your mind up about these events before raising them with him – what is your response to this?” And so on. By the time the cross-examination of all of the respondent’s witnesses have been completed it should be possible to understand the main thrust of the claimant’s case. If at a later stage the claimant, in their testimony, makes a statement about the actions of one of the respondent’s witnesses that was not put to that witness in cross-examination, then this will give grounds for an objection to be raised by the respondent’s representative, and possibly the recall of the witness concerned to have the opportunity of rebutting the new and as yet untested evidence. Where a representative becomes concerned about a line of questioning, or feels that their witness is being prevented from answering the questions asked as the result of continual interruptions or an overly aggressive approach from the other side, then they should object to this. This can be very useful if done tactfully as it will give the witness time to regain their composure. The representative who does object in this way risks the wrath of the Chairman – but this can be a small price to pay if it has the effect of throwing the other side ‘out of their stride’ and giving their witness some respite.

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Effective cross-examination consists of asking short incisive closed questions. Questions that are difficult to answer by other than a ‘Yes’ or ‘No’. It can also be useful to get a witness into a pattern of answering in the affirmative before asking the witness a question that they should really answer in the negative. The pattern can lead them to answer in the affirmative and thus damage their credibility in the eyes of the tribunal if they subsequently seek to correct their answer. The value of silence should also not be under estimated. Often allowing silence to hang heavy in the air while looking expectantly at a witness will lead the witness to volunteer information that would otherwise not be forthcoming. Where documentary evidence contradicts the testimony of a witness then this should be put forcibly to the witness during cross-examination. Documentary evidence that is clear and unambiguous has a value over and above oral evidence that contradicts it. Good clear contemporaneous documentation can be worth its ‘weight in gold’ at a hearing. Cross-examination, following directly on, as it does, from examination in chief, provides the cross-examiner with little time to prepare questions, other than those that have been prepared in advance of the hearing. It is for this reason that every effort should be made to record the evidence in chief in long hand. Evidence which conflicts either with evidence that has already been heard, or facts known to the cross-examiner, or documentary evidence, should be underlined or marked in highlighter to raise with the witness in cross-examination. When the Chairman interrupts the examination in chief to ask questions that appear relevant to him, this will give pointers to areas for possible fertile crossexamination. These should be recorded in the notes of the representative and marked accordingly. As in examination in chief, during cross-examination a close observation of the reactions of the panel members, both to questions and their replies, is important. Care should be taken not to alienate the panel by an overly aggressive approach when one is not warranted. The particular nature of the claim will indicate early on the style most appropriate to adopt during the cross-examination. In claims of unfair dismissal on the grounds of unfair selection for redundancy for instance, it can be expected that the claimant will have the sympathy of the panel at the outset of the proceedings. Questioning such a claimant will require a radically different approach from the style appropriate to cross-examining an employee dismissed for assaulting another employee or stealing goods from his employer.

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An employee who was dismissed for long-term sickness absence will similarly require a gentle probing approach in cross-examination, rather than a frontal assault claiming that the employee in question was a shirker and a malingerer.

Re-examination After witnesses have been cross-examined there is the opportunity for re-examination by the party that called them to give evidence. During re-examination questions can only be asked about matters which arose during cross-examination. Re-examination should be kept as short as possible and no attempt should be made to raise fresh matters that were not covered in evidence in chief, or in cross-examination. Representatives should aim to be short and sharp and only ask questions if an impression has been left through cross-examination that needs re-focusing or correcting.

The closing address When each side have presented their evidence to the Employment Tribunal they are given an opportunity of making a closing address. It falls to the party on whom the burden of proof lay to make the final closing address (except in Scotland where the order is reversed. In contrast to opening statements – parties have a right to make a closing statement to the tribunal since the regulations that govern tribunal procedure entitle a party to ‘address the tribunal’ and it is customary – although not essential – to make a closing address to stress the merits of a case, and argue why one side’s case should be preferred over the other. Most tribunals insist on the closing address being short and concise. Some Chairmen place a time limit of as little as ten minutes on representatives when summing up. This approach can significantly concentrate the mind of the representative as to which facts to highlight and remind the tribunal. The purpose of the closing address is to summarise the case for the party concerned in the light of the evidence given, highlighting aspects of the evidence that support their contention and relating the evidence to relevant law and case law, with a view to persuading the tribunal to decide the case, on the balance of probabilities, in favour of one’s own party. In most cases closing addresses are helpful rather than decisive. Again it is quality not quantity that counts. The tribunal will have heard all of the evidence. Simply

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to recite the evidence again to the tribunal in the closing address is to risk having a bored panel of tribunal members. Where, however, there has been a gap in the proceedings with the second or third days of the hearing being heard some time after the first day, it may be useful to remind the panel members of the evidence that was heard in the early stages of the proceedings. This can be particularly useful where months, rather than weeks, have elapsed since the proceedings commenced. If the representative has been taking full notes throughout the proceedings and has marked in highlighter points or particular pieces of evidence for use in the closing address, then their task will be fairly straightforward. If they have not, then the closing address will lack the spontaneity and freshness that will mark it out as special. Specific highlighted oral evidence, when woven with, and related to, documentary evidence that has been presented to the tribunal, will enable a representative to make the best possible case in the closing address. Whilst it is possible to prepare the main points that a party intends to use in the closing address prior to the hearing commencing, particularly where this is supported by relevant case law, the best closing addresses are a mixture of prepared points laced with case law and selected highlighted pieces of evidence, both oral and documentary. Achieving the right balance between preparation and spontaneity is difficult – but that is the objective to aim for. A re-reading of the pleading used on the ET3 is recommended whilst preparing the closing address. This sets out the original defence to the claim. Hopefully, and where necessary, the person who drafted this will have pleaded in the alternative. This should be brought out in the closing address – it links the beginning of the defence to the evidence heard. Arguments in the alternative need to be further developed at this time to remind the tribunal to consider them when arriving at their decision. In cases of unfair dismissal it is important to allow for the fact that the tribunal may find against the respondents in their decision. It is sensible therefore to allow for this possibility by arguing that, should the tribunal find that the claimant has been ‘unfairly’ dismissed, then they must also consider the question of their contribution to their dismissal. Any percentage of contribution found by the Employment Tribunal against the claimant will go toward reducing the ultimate compensation awarded against the respondents. Whilst rare, there are cases where decisions have been made that the claimant has been unfairly dismissed, but the Employment Tribunal has gone on to find that the claimant has contributed

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100 per cent to their dismissal. In effect, this reduces the compensatory award to nil and allows the claimant a victory in name only. Case law should be used sparingly during the closing address. The decisions of superior courts are binding on an Employment Tribunal. So decisions of the European Court, the House of Lords, the Court of Appeal and the Employment Appeal Tribunal are binding on an Employment Tribunal. The Chairman, however, should be aware of the relevant case law and to present the tribunal with a long list of cases is to risk alienating them. Skilfully used however, case law can remind the tribunal of the precedents that they must observe when reaching their decision. It is helpful to preface the introduction of particular case law with words such as ‘As the tribunal will no doubt be aware, in the case of... (quoting the relevant IRLR number) the… (relevant court) found’. Copies of the case/s in question should be copied and taken to the hearing to avoid the tribunal clerk having to search them out during the tribunal’s deliberations. A confident presentation of the relevant case law will impress on the tribunal that the representative is a professional who knows the area of the law in question. Case law should, however, only be used where the representative is confident that the decisions used are relevant and must be considered by the tribunal in reaching the decision. Once the closing addresses of both parties are complete it remains only to await the decision of the tribunal. Occasionally the Chairman will, during the course of the proceedings, suggest to the parties that they should go away and see if they can settle the matter through discussion. Heavy hints may be dropped that the tribunal is leaning in one direction or another. The Chairman should always state that this does not mean that the tribunal has reached a decision ahead of hearing all of the evidence, but that they are pointing out the problems that they consider need to be overcome if one party or the other is to succeed. It is up to the parties whether or not to act on these suggestions. Clearly where the hint to the respondents is a heavy one that there could be a finding of Unfair Dismissal, then any such suggestion should be taken seriously, with every effort being made to reach a compromise settlement outside of the hearing. If a settlement is not possible then the parties will return to the hearing to advise the Chairman accordingly and the case will continue.

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General hints Representatives would be well advised not to: •

engage in theatrics

•

keep interrupting their opponent

•

lounge about, slouch, or gesticulate when evidence is being given, or statements made which they know or believe to be untrue

•

‘be thrown’ by a Chairman who makes it clear that they want the parties to settle the case without apparent justification

•

become emotionally involved in the case.

Representatives should always aim to: •

maintain credibility with the tribunal

•

be brief

•

keep a careful note of the evidence

•

listen to all of the evidence with visible interest

•

be polite, even when being forceful

•

seek always to be of assistance to the tribunal and to be viewed in this light.

Summary •

Avoid monotony and repetition when questioning witnesses.

•

On those occasions when witnesses do not give the evidence expected of them, the representative should not indicate their surprise at this, either to the witness or the tribunal. When completely thrown by a piece of evidence, the representative would be well advised to seek a short adjournment (on whatever pretext seems appropriate at the time) although there is no guarantee that it will be granted; if it is granted it will give time for reflection and adjustment.

•

The representative should never appear lost for words, or find it necessary to fumble around amongst their papers for a question or a document – this is why the use of the Chronology is strongly recommended.

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•

The representative should make every effort to avoid interrupting witnesses when they are replying to questions (particularly their own witnesses).

•

Representatives should aim to be self-confident, without being over confident.

•

When faced with a Chairman who constantly interrupts, representatives should be polite, but firm, and ensure that they ask all of the questions required of the witness.

•

Representatives should remember to keep up the momentum of their questioning.

•

Representatives should warn their witnesses not to discuss the case whilst under oath, particularly during lunch breaks or adjournments. They should also advise their witnesses to tell the truth at all times when giving their evidence. When the witness does not know the answer to a question then they should say so. When they do not understand a question, again they should say so.

Representatives should take to the hearing: •

the bundles of documentary evidence

•

the notice of hearing

•

three or four pencils and pens

•

a coloured marker pen

•

an A4 or lined legal pad

•

a good reference book

•

the Chronology

•

a box of headache pills and some peppermints or boiled sweets!

Preliminary matters should be raised first and opening addresses (where allowed) should be brief.

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Witnesses: •

Should be encouraged to tell the Employment Tribunal what they know of the events in question in their own words.

•

Representatives cannot lead (suggest answers) to their own witnesses.

•

Each witness should build on the testimony of the witness before with the objective being to build the story chronologically for the panel.

•

Employment Tribunals value the opportunity afforded to them of witness’ oral testimony to make value and character judgements.

•

Representatives should avoid hearsay evidence together with monotony and repetition.

•

Should aim to be confident – but not over confident.

•

Should try to be courteous and helpful to the panel whilst at the same time ensuring that they present their case fully.

During cross-examination representatives should: •

have clear objectives in mind

•

challenge and test the credibility of the other side’s witnesses whilst avoiding confrontation or emotional involvement

•

use leading questions as necessary

•

remember the value of silence

•

at all times be aware of the panel members reaction both to questions and answers, and

•

during re-examination representatives should only ask questions related to matters raised during cross-examination.

The closing address should: •

summarise evidence not repeat it

•

aim to combine preparation with spontaneity

•

argue the strength of the case using re-called oral and documentary evidence

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•

use case law sparingly and only where directly relevant to the case at hand

•

argue both ‘in the alternative’ and ‘contribution’

•

be brief and sincere.

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Chapter 10 The decision Costs....................................................................................................116 Reviewing the decision .....................................................................118 Remedy hearings ...............................................................................119 Summary ............................................................................................121

Chapter 10 The decision The tribunal may give its decision at the end of the hearing (in which case the Chairman will usually dictate it there and then) or it may be reserved. In either case a written decision will be sent to the parties in due course. To be valid under the rules the decision need only tell the parties in broad terms why they have won or lost. Where there is a clear conflict of evidence on an issue of fact, the tribunal must reach a clear view on the evidence heard and set this out in the decision. Employment Tribunals may give their reasons in summary form in dismissal applications, except where: •

they are linked to discrimination claims of whatever type

•

or in interim relief applications

•

a request has been made orally at the hearing for full written reasons to be issued

•

either party asks in writing, within 21 days of the hearing, for extended reasons setting out the full tribunal’s decision.

The tribunal also has discretion to issue extended reasons in any case where: •

after a summary decision has been issued, it considers that extended reasons would be desirable

•

the tribunal has reached a majority decision, the Chairman must clearly set out the opinions of the majority and minority in the decision.

The tribunal has the power to correct any simple mistake of fact or calculation which arises from an accidental slip or omission.

Costs An Employment Tribunal may make a costs award of up to £10,000 where, in the tribunal’s opinion, a party has behaved vexatiously, abusively, disruptively or otherwise unreasonably in bringing or conducting the proceedings; or the tribunal find that the bringing or conducting of the proceedings by a party has been misconceived. In such circumstances the tribunal may make an award of

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costs against the party. Such an award can include the costs of preparation time in preparing for the hearing for non legally represented parties, and ‘wasted’ costs. A costs order can be made against a party only where that party has been legally represented, either at the hearing, or if there is no hearing, when the proceedings are determined. Costs are defined as fees, charges, disbursements or remuneration incurred by or on behalf of a party. Where a respondent has not had a response accepted, he or she may still have a costs order made against, or in favour of him or her, relating to any part that he or she has taken in the proceedings. The rules make it clear that costs orders are payable by the party against who they are made,and not by the party’s representative. A tribunal must make a costs order against a legally represented respondent where, in an unfair dismissal case, a hearing has been postponed or adjourned (i.e. delayed) and a) the claimant informed the respondent not less than seven days before the hearing that he or she wanted to be reinstated (i.e. return to their job) or re-engaged (i.e. return as an employee, but to a different post); and b) the postponement or adjournment was caused by the respondent failing, without special reason, to provide evidence as to the availability of the job from which the claimant was dismissed, or of comparable or suitable employment opportunities. Further tribunals have the power to make awards of costs directly against a paid representative in those cases where the representative’s conduct of the proceedings has triggered the costs award. Such an award may mean that the representative may not recover his or her fees from their client, or that he or she has to pay the other party’s costs. Note: the wording of the regulations exclude those representatives who do not charge for their services. Costs can include what are called ‘wasted’ costs. These are costs such as travel or overnight stay expenses that have been incurred by a party – but which may be wasted – due to the conduct of the other party. Such a wasted costs award will only be made where the representative is conducting a case in pursuit of profit, so a trade union representative, for example would not be affected by this rule. Costs may be made in favour of a legally represented party where a hearing is adjourned or postponed due to the conduct of the other party or where there is a a failure to comply with an order or a practice direction. Preparation time orders may be made in favour of a party but only where they have not been legally represented (i.e are unrepresented litigants) at either the hearing, or if the proceedings have been determined without a hearing, they

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have not been legally represented when the proceedings have been determined. Preparation time does not include any time spent at hearings. However, it does include any preparation work done which is directly related to to the proceedings, and also any time spent by that party’s advisers or employees directly relating to the conduct of the proceedings. The rules provide that in order to calculate the amount of relevant preparation time, the tribunal shall make an assessment of the number of hours spent on preparation on the basis of information provided by the receiving party, and the tribunal’s own assessment of what it considers to be a reasonable amount of time for the party to have spent. The tribunal shall then calculate the amount of the award to be paid by applying an hourly rate of £25 to the preparation time, up to a maximum of £10,000. As with costs orders, the tribunal may have regard to the party’s ability to pay when considering whether it shall make a preparation time order, or how much that order should be. Note: a tribunal may not make a preparation time order and a costs order in favour of the same party at the same proceedings (with minor exceptions). Both costs and preparation time orders can be made at any time during the proceedings. Applications can be made orally at the end of a hearing , or in writing to the tribunal office. If the application for costs is received later than 28 days after the judgement, it will be considered only in exceptional circumstances. Whilst the maximum costs that can be awarded is £10,000, this need not necessarily be the case. The tribunal rules set out three ways in which a costs order against a party can be made. First the tribunal may specify the sums payable, where that sum is no greater than £10,000. Secondly the parties may agree the sum payable between themselves. Thirdly the tribunal may order the costs to be determined by way of a detailed assessment in a County Court. The rules make it clear that if the amount is set using the two latter methods, the amount can exceed £10,000. If the application for costs is received later than 28 days after the judgement, it will be considered only in exceptional circumstances.

Reviewing the decision An Employment Tribunal may review its decision and confirm, revoke or vary any decision made where: •

the decision was wrongly made as a result of an error on the part of the tribunal staff, or

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•

a party did not receive notice of the proceedings leading to the decision or

•

the decision was made in the absence of a party or person entitled to be heard, or

•

new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known at the time of the hearing, or foreseen, or

•

the interests of natural justice require a review.

An application for a review may be made either at the end of the tribunal hearing or within 14 days of the decision being sent to the parties. The Employment Appeal Tribunal (EAT) has said that the review provisions were ‘not intended to provide parties with the opportunity for a re-hearing at which the same evidence can be rehearsed with a different emphasis, or further evidence adduced which was available before’. A review is intended to correct a very specific error or mishap in the conduct of a tribunal hearing, or to deal with new evidence that was genuinely not available at the time of the original hearing.

Remedy hearings After announcing their decision, it is not uncommon, where the application has succeeded, for the Chairman to invite the parties to consider whether agreement can be reached between them that will avoid the tribunal having to consider the matter of compensation. The benefits of this approach for the respondent is that agreement may be reached on a lower figure than might otherwise be awarded to the claimant. For the claimant, the advantage is that any figure agreed will not be subject to any deductions under the Recoupment Regulations. The opportunity should not be missed therefore to retire and see whether agreement is possible. Where agreement cannot be reached, the tribunal will go on to consider the question of compensation for the successful claimant. Unless the claimant has already been examined and cross-examined during the main hearing on their losses and their efforts to mitigate these (in unfair dismissal cases), they will be required to give evidence on these matters. The opportunity will be afforded to the respondents to cross-examine the claimant fully on

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their efforts to find alternative work. This possibility should not be ignored in the preparation for the hearing, particularly when information reaches the respondents that the claimant has unreasonably turned down offers of suitable alternative employment. As in all other matters it will be necessary to present evidence to the tribunal to substantiate any such claim. In cases of unfair dismissal the tribunal is bound to consider the question of reinstatement or re-engagement. This is unlikely to be ordered where the findings are that the claimant contributed to their own dismissal in any way. Nor where the claimant clearly states that they do not wish to resume employment within the respondent’s business. The respondent’s representative, however, should be prepared for questions from the tribunal on these matters and at the hearing should have available details of any vacancies that exist that could be suitable for the claimant. The following points are worthy of note when the question of compensation is being considered: •

The compensatory award is such compensation as is just and equitable having regard to the loss suffered as a result of the dismissal subject to the maximums that apply.

•

If the employee suffers no injustice because of the dismissal, they may receive no award from the Employment Tribunal at all, and the tribunal is entitled to ask whether it would have made any difference if the proper procedures had been put into effect. If so what would have been the difference?

•

The burden of proving loss, and that they have mitigated that loss, is on the claimant, while the employer has to prove contributory fault.

•

If the employee might have been fairly dismissed in the near future, e.g. if the employer had given the employee further warnings, or a proper hearing, or the prospect of redundancy due to closure of the business had arisen, or some other similar occurrence, the tribunal may make an award only up to the time when it considers that the employee might have been fairly dismissed.

•

An Employment Tribunal may award little or no compensation in the case of a dismissal which was unfair by reason of a faulty procedure if it is satisfied that if the proper procedure had been adopted the employers would have fairly reached the same conclusion.

•

When considering compensation the tribunal will first calculate the total loss before applying any reduction for contributory fault.

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Summary •

The decision need only tell the parties in broad terms whether they have won or lost.

•

The decision may be in summary or extended form.

•

If in summary form the parties may apply for full reasons within 21 days of the decision being issued.

•

Where a majority decision is reached the Chairman must set out the views of both the majority and the minority.

•

Costs may be awarded where a party has behaved frivolously, vexatiously, abusively, disruptively or unreasonably in bringing or conducting the proceedings.

•

It is possible to seek a review of an Employment Tribunal decision where an error has been made by the tribunal staff, or where a party did not receive notice of the proceedings, or where a decision was made in the absence of a party or person entitled to be heard, or where new evidence has become available since the conclusion of the case, provided that its existence could not reasonably have been known at the time of the hearing, or where the interests of ‘natural justice’ require it.

•

An application for a review must be lodged within 14 days of receiving the decision.

•

Remedy hearings take place after the decision has been reached in order to determine the amount of compensation due to the successful claimant.

•

Evidence is heard on the loss suffered and claimants can be cross-examined on their efforts to seek and find alternative work.

•

The Employment Tribunal must consider re-engagement or reinstatement at remedy hearings. Respondents are advised to bring to the hearing information on actual vacancies that exist in the establishment.

•

The burden of proving loss falls to the successful claimant.

•

The Employment Tribunal can award only to the maximums allowed under the relevant legislation.

•

There are no ceilings in sex or race discrimination claims.

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Chapter 11 Appeals Summary ............................................................................................124

Chapter 11 Appeals The Employment Appeal Tribunal consists of a High Court Judge (in England and Wales) or a Court of Session Judge (in Scotland) sitting with lay representatives of management and unions. As in the Employment Tribunal, with the consent of the parties, the judge and one lay member may sit to hear a case. Further a judge may sit alone to hear any appeal from a case where the Chairman of the tribunal sat alone. To succeed in an appeal the Employment Tribunal must have wrongly applied a legal principle, misunderstood or misapplied a statute, or reached a decision which is so perverse that no reasonable Employment Tribunal properly directed could have reached such a decision. An appeal will not succeed merely because the Employment Appeal Tribunal would have reached a different decision on the facts presented to the tribunal. An appeal will fail if: •

it is based on the fact that an Employment Tribunal has not expressly mentioned a factor in its decision

•

the contention is that one Employment Tribunal has reached one conclusion and another has reached a different conclusion on similar facts

•

a fresh point is raised for the first time before the Employment Appeal Tribunal.

The Employment Appeal Tribunal may overturn a decision by an Employment Tribunal or remit a case to the Employment Tribunal if it sees fit, where there has been a misdirection in law by the Employment Tribunal. However, the Employment Appeal Tribunal should not remit the case for rehearing by the same or a different Employment Tribunal unless the decision is ‘plainly and unarguably right notwithstanding the misdirection’. An appeal to the Employment Appeal Tribunal must be instituted by serving a notice of appeal on the Employment Appeal Tribunal within 42 days of the date on which reasons in extended form for the decision or order of the Employment Tribunal was sent to the parties.

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Summary •

Appeals are only allowed on points of law, or where the decision is contrary to the requirements of natural justice.

•

The Employment Appeal Tribunal may overturn a decision or remit it to the same or a fresh Employment Tribunal.

•

Appeals above the Employment Appeal Tribunal stage are allowed only with authorisation of the Employment Appeal Tribunal

•

Appeals must be lodged within 42 days of the decision being received.

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Chapter 12 Conclusion

Chapter 12 Conclusion Employment Tribunals are now a fact of business life. The growth in employment legislation has inevitably led to a growth in applications to Employment Tribunals. Few, if any, employees are unaware of their rights in this area of the law and the stigma that used to be attached to taking your employer or exemployer to tribunal has now disappeared. Statistics show that in the past decade there has been an explosion in the number of claims brought and that many of these are brought whilst employees remain in employment. Any action taken against employees bringing a claim against their current employer is itself unlawful and will, as a result, risk attracting further penalties. Business life revolves around contract law. Orders are placed, supplies are delivered, offices and factories are rented or leased and employees are recruited. Contract law abounds in every area of business. Employment relationships have always been subject to the law of contract, the old ‘Master Servant’ cases of the early years heard in civil courts still influence case law today. As with every claimed breach of contract there has to be a legal remedy. Employment (previously Industrial) Tribunals were established with every good intention to provide a quick and simple way of dealing with claimed breaches of contract. Unfortunately these good intentions did not last. With the decision to appoint lawyers to Chair the proceedings it was inevitable that legalism would increasingly creep into the proceedings. Regrettably the degree of legalism is far too heavy today. My advice to clients has never varied over the years. That is, take every step possible to prevent cases going forward to Employment Tribunals. Once a claim has been lodged the problem risks drifting out of management’s control. Employment Tribunals can be capricious. On occasions they come to decisions that defy logic. It is difficult in a calm ordered courtroom to convey to panel members, many of whom may have never worked in a factory, or on a shop floor, the reality of a situation that may have happened in the middle of a night shift, or in a hot warehouse on an August afternoon when the pressure for deliveries to be made on time was intense. The dry facts of a case rarely convey this. It is difficult for managers who are under pressure to explain in clear language under professional cross-examination why they acted in the way that they did. These, and

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other limitations, make tribunals an imperfect system. However, Employment Tribunals are the system within which managers and directors must work today. The cost of losing cases becomes ever higher. Tens of thousands of pounds can be awarded when cases are lost and the cost of representation can run to thousands of pounds. The risk to the bottom line can be great indeed. Managers should not be frightened of representing their own cases. Following the guidelines laid down in this Briefing most competent managers should be able to prepare and represent their own cases. Employment Tribunals in my experience look favourably upon the professional manager who does not hide behind a solicitor or lawyer when appearing. In addition to this, I strongly recommend as common sense good business practice, that directors ensure that they have clear well thought ‘people’ procedures and contracts of employment that comply with the requirements of the relevant legislation, in place within their organisations on which all that are engaged in the management of people have been trained. Cases of ‘instant dismissal’ should not arise, only cases of ‘instant suspension’. Managers are well advised to take their time before reaching the decision to dismiss an employee, no matter how blatant their breach of the business rules appears. Time spent in investigation and reflection before disciplinary or dismissal action is taken is time well spent. Similarly, grievances and claims of discrimination or harassment need very thorough investigation and documentation. Written records of what was done and what was said, together with the outcome of investigations, are essential if good management practices are to be seen to have been followed. Remember, written agreed records are worth ‘their weight in gold’ at any tribunal hearing. Their value far outweighs verbal evidence. If disputes appear to be moving towards a claim then negotiation should take place in an attempt to resolve the matter. Where successful, the outcome of these negotiations should lead to a compromise agreement to ensure that the issue is settled once and for all. To ensure that the wording used in any such agreement is correct and that any subsequent claim is stopped, external professional advice is essential. This Briefing has endeavoured to simplify the process of defending an application that has been made against an employer at Employment Tribunal and to treat such an application like any other management exercise, enabling managers to feel confident when handling a claim. If due to pressure of work they hand the case over to lawyers to act on their behalf, they will be aware of

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the steps that should be followed by their representatives, and will not be bamboozled or baffled by the terms used in any proceedings to which they are party. I wish you success! Dennis Hunt

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Chapter 13 Summary of changes introduced by the Employment Act 2002 Commencement of a claim ...............................................................130 Default judgments .............................................................................131 Case management .............................................................................131 ACAS conciliation .............................................................................132 Directions hearings ...........................................................................132 Costs....................................................................................................133

Chapter 13 Summary of changes introduced by the Employment Act 2002

Commencement of a claim Employment tribunals commence with the submission of an Originating Application – the ET1. In this document the claimant is required to state precisely what it is that they are claiming. The Employment Act 2002 radically increased the amount of information sought via the ET1. The form increased considerably in size to eight pages and eleven sections. It is now a formidable document indeed. It is accompanied by a five page closely worded guidance sheet which includes the recommendation that the claimant seek advice on completing the form. The intention behind this change is to ensure that sufficient information is available to the employment tribunals administration staff, to enable them to check that both the claimant and respondent have met the new requirements placed on them by the new ‘Disputes Regulations Procedures’ that came into force on the 1st of October 2004. The Employment Act 2002 contained provisions preventing certain categories of complaint from being presented to a tribunal until they have been dealt with by the use of the employer’s grievance procedure. Where this has not happened, the case can be remitted back to the employee or ex-employee, to enable the steps of the Statutory Grievance Procedure to be followed with at least 28 days elapsing thereafter. The time deadlines which surround any claim to the ET will be extended to allow these steps to be followed. ‘Fair’ includes the fact that a disputes procedure was followed that met the specific requirements of the ‘Disputes Resolution Regulations’. Where the requisite disputes procedure has not been followed, or worse, no disputes procedure exists, or is inadequate, the respondent risks automatically losing the case with the award of compensation being made against them being increased by between 10% and 50%.

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Default judgments The revised Employment Tribunal Constitution and Rules of Procedure 2004, introduced a new system of default judgements under which a tribunal chairman may, in certain circumstances, determine a case without a hearing if he or she considers it appropriate to do so. Such a judgement may decide liability alone, or liability and remedy. As a result of this change, a chairman may issue a default judgement where a respondent has failed to submit a response within the prescribed time limit, or the respondent has submitted a response which failed to meet the pre-acceptance conditions.

Case management The powers of case management given to chairmen under the new rules of procedure are considerable. These powers are an integral part of the intentions of the regulations to speed up proceedings wherever possible. Chairmen now have the power to hold ‘case management discussions’. Such discussions are interim hearings intended to deal with matters of procedure and management of the proceedings. They can be held by a chairman on his or her own with the claimant and the respondent invited to take part. They may be held over the telephone or in person. If either party fail to carry out or comply with any order that results from any such discussion, their claim or response may be struck out and they can become liable to pay some or all of the other parties resultant costs. The new rules provide that notwithstanding the ‘preliminary or interim’ nature of a PHR, a case may be struck out at this stage where in the chairman’s view a claim or response is scandalous, vexatious or has no real prospect of success; or where the conduct of the case has been scandalous, unreasonable or vexatious.

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ACAS conciliation The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 which came into force on the 1st of October 2004 radically changed the rules governing the period of time during which conciliation, under the auspices of ACAS, can take place. Previously, conciliation was open-ended in time. The new rules introduced fixed defined periods for conciliation under the auspices of ACAS. During these periods of conciliation no hearing date will be set or notified to the parties. Once these periods have elapsed ACAS will not become involved further as their ‘duty’ to conciliate will have been fulfilled. They will still have the ‘power’ to conciliate but are expected to exercise this power with considerable restraint. Short conciliation periods of seven weeks, starting with the date the claim is sent to the respondents, will apply to breach of contracts claims and other claims brought under the Employment Rights Act 1996 – including unlawful deductions from wages, right to guarantee payments, right to time off for public duties and a failure to pay redundancy payment. This, together with a variety of claims brought under the Trades Union and Labour Relations (Consolidation) Act 1992, and Claims under the TUPE Regulation regarding a failure to pay compensation following a failure to consult as required by the TUPE Regulations. A ‘standard conciliation period’ of 13 weeks will apply to all other claims.

Directions hearings Directions hearings will, as a result of the Employment Act 2002, become an increasing feature of the employment tribunal case management process. A tribunal may at any time, on the application of a party or of its own motion, give such directions on any matter arising in connection with the proceedings as it appears to the tribunal to be appropriate. Directions may include any requirement relating to evidence, including the provision and exchange of witness statements, the provision of further particulars, and the provision of written answers to questions put to either party by the tribunal. The tribunal may also, on the application of a party or on its own motion, require the attendance of any person, either to give evidence or to produce documents or both, and may determine both the time and place at which the person is so to attend. A failure to comply without reasonable excuse shall lead on summary conviction to a fine. The tribunal also has the power to make an

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order in respect of costs and to strike out the whole or part of the originating application, or the notice of appearance and, where appropriate, direct that a respondent be debarred from defending the case altogether.

Costs One major change introduced by the Employment Protection Act 2002 relates to the power of tribunals to make costs orders. This increased power provides additional ‘bite’ to a tribunals powers and is intended to force parties to ensure that they comply with all tribunals orders and do all in their power to ensure that delays and adjournments are kept to a minimum, thus eliminating unnecessary delays to the proceedings. The new powers enable tribunals to make costs awards of up to £10,000 where, in the tribunal’s opinion, a party has behaved vexatiously, abusively, disruptively or otherwise unreasonably in bringing or conducting the proceedings; or the tribunal find that the bringing or conducting of the proceedings by a party has been misconceived. In such circumstances the tribunal may make an award of costs against the party. Such an award can include the costs of preparation time in preparing for the hearing for non legally represented parties, and ‘wasted’ costs. Costs can include what are called ‘wasted’ costs. These are costs incurred by a party such as travel or overnight stay expenses that have been incurred – but which may be wasted – due to the conduct of the other party. Preparation time orders may be made in favour of unrepresented litigants. Preparation time does not include any time spent at hearings. However, it does include any preparation work done which is directly related to the proceedings, and also any time spent by that parties advisers or employees directly relating to the conduct of the proceedings. Whilst the maximum costs that can be awarded is £10,000, this need not necessarily be the case. The tribunal rules set out three ways in which a costs order against a party can be made. Firstly, the tribunal may specify the sums payable, where that sum is no greater than £10,000. Secondly, the parties may agree the sum payable between themselves. Thirdly, the tribunal may order the costs to be determined by way of a detailed assessment in a County Court. The rules make it clear that if the amount is set using the two latter methods, the amount can exceed costs.

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Appendices APPENDIX 1 Calculating awards ..................................................................................135 Basic award ........................................................................................135 Compensatory award........................................................................136 Duty to mitigate loss..........................................................................137 Additional awards .............................................................................137 Interim relief.......................................................................................138 Injury to feelings ................................................................................138 Aggravated damages ........................................................................139 APPENDIX 2 Useful addresses ......................................................................................140

Appendix 1 Calculating awards Note: The figures given in this Appendix are correct at the date of publication. The current rates however, may have changed and a telephone call to ACAS (the Advisory Conciliation Service) on 020 7210 3613 will provide the latest figures.

Basic award If a claimant succeeds in a complaint of unfair dismissal, he or she will be entitled to a basic award according to age and length of service at the date the employment ended. This is calculated as follows: •

1.5 weeks’ pay for each year of employment in which he or she was aged at least 41, plus

•

one week’s pay for each year of employment between the ages of 22 and 40, and

•

0.5 week’s pay for years between 18 and 21.

A maximum of 20 years is counted for this purpose (counting backwards from the date of termination), and a week’s pay is £280, or the actual amount, whichever is the less. The maximum amount payable is therefore £8,400, i.e. 1.5 weeks x 20 years x £280. A reduction is applied if the employment ended after the employee’s 64th birthday. The Department for Education and Employment publishes a ready-reckoner table of how to calculate the amount due in a particular case. A minimum basic award of £3,600 applies in cases of unfair dismissal where the principal reason for dismissal is trade union membership or activities, acting as a health and safety representative or as a pension scheme trustee or employee representative.

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The basic award may be reduced if: •

the employee has unreasonably refused an offer of re-instatement

•

the employee’s conduct before dismissal makes a reduction just and equitable

•

the reason for dismissal is redundancy and a redundancy payment has been made.

Compensatory award The compensatory award is intended to compensate the employee for the financial loss suffered as a result of the dismissal, and is subject to a maximum of £56,800. However, there is no limit to awards where: •

the dismissal is for a health and safety reason or for making a protected disclosure (i.e. as a ‘whistle-blower’)

•

redundancies are selected for either of the above reasons

•

the dismissal is found to be discriminatory.

In determining the compensatory award, a tribunal has to consider what is just and equitable in all the circumstances. It will take into account the net pay the employee has lost since the end of employment, which may include overtime, tips, fringe benefits such as a company car, and projected pay increases. The term ‘net pay’ also allows for any pay in lieu of notice and possibly for an ex gratia payment already made by the employer depending on the terms on which it was given. Benefits earned by employees under early retirement provisions, or as a result of retirement on the grounds of ill health, are not taken into account following a successful claim for unfair dismissal. Statutory redundancy payments are calculated in the same way as the basic award (see above). If an employer’s redundancy scheme is more generous than the statutory scheme, the statutory element is taken to correspond to the basic award, and any amount over and above this will be set against the compensatory award. A tribunal may also award the expenses incurred in job search and possibly the expenses involved in taking up a new job if an employee has to move house. Sums are also awarded to compensate for the loss of statutory employment rights, such as the right to bring a future claim for unfair dismissal, and for loss of pension

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rights. Each of these two heads normally attracts a payment of between £150 and £200, but the pensions issue can occasionally be much more complicated, and costly.

Duty to mitigate loss A dismissed employee has a duty to ‘mitigate his or her loss’, and it will be for him or her to produce evidence of attempts made to obtain fresh employment. Tribunals will not award compensation for lost wages for the whole period of unemployment where the claimant has not made a realistic attempt to find fresh employment. So far as any future loss is concerned, the tribunal will make an estimate of the length of time unemployment is likely to last, taking into account local labour market conditions, and whether the dismissed person has had to accept employment at a lower rate of pay, or possibly become self-employed.

Additional awards An additional award must be made, other than in special circumstances, in cases where a re-employment (reinstatement or re-engagement) order is made by a tribunal, but not complied with. This is between 26 and 52 weeks’ pay – £7,280 minimum and £14,560 maximum (at a maximum of £280 per week and is not subject to any reduction for an employee’s contributory conduct. In unfair dismissal cases a tribunal has the power to make a supplementary award of two weeks’ pay where it can be proved that the employer prevented the employee from appealing against dismissal under the employer’s procedures. Conversely where an employee does not utilise the employer’s appeal procedure the tribunal has the power to reduce any award by up to two weeks’ pay. The Employment Act 2002 introduced provisions that enabled tribunals to vary compensatory awards by between 10 per cent and 50 per cent where the employer or the claimant has failed to use the minimum statutory procedures. These are basic procedures governing discipline and dismissal as set out in the Act and which are similar to those set out in the ACAS Code of Disciplinary Practice and Procedure.

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Interim relief Interim relief is available to employees claiming unfair dismissal on one of the following grounds: •

trade union membership or activities

•

non-membership of a trade union

•

carrying out health and safety activities

•

being a trustee of an occupational pension scheme

•

acting as a representative in relation to redundancy, business transfer or working time regulations

•

standing as a candidate for election as an employee representative.

An order for interim relief will preserve the status quo until the tribunal hearing. To obtain interim relief, the employee must apply within seven days of the effective date of termination and show that he or she is likely to be successful at a full hearing. If the claimant is successful, the tribunal will make an order for reinstatement or re-engagement. If the employer is unwilling to agree to reinstate or re-engage the employee, an order will be made to continue the employee’s employment contract until the complaint is decided by the tribunal. If the employer fails to comply with an order, the tribunal can then make a compensatory award to the employee.

Injury to feelings In discrimination cases, claimants are compensated for the injury to feelings they suffer as a result of the discriminatory conduct. The onus is on the employee to produce appropriate evidence, including medical evidence, to establish the nature and extent of the injury. In practice, for injury to feelings the current range of awards is £500 to £20,000. The Employment Appeal Tribunal offered the following guidelines in 1997: •

awards are compensatory, not punitive

•

they should not be so low as to diminish respect for the legislation, nor so high as to be untaxed riches

•

awards should be broadly similar to those in personal injury cases

THOROGOOD PROFESSIONAL INSIGHTS

138

APPENDICES

•

tribunals should remind themselves of the everyday value of sums awarded

•

they should also be mindful of the need for public respect for the level of awards made.

Aggravated damages Aggravated damages are awarded in particularly serious cases of discrimination, for example, where the employer’s behaviour is malicious or oppressive, including during the tribunal hearing itself. Aggravated damages are awarded in about three per cent of successful discrimination cases.

THOROGOOD PROFESSIONAL INSIGHTS

139

APPENDICES

Appendix 2 Useful addresses Advisory Conciliation and Arbitration Service Head Office

Cressington House

Brandon House

249 St Mary’s Road

180 Borough High Street

Garston

London

Liverpool

SE1 1LW

L19 0NF

Tel: 020 7210 3613 Web: www.acas.org.uk

South and West Region Regent House

Midlands Region

27a Regent Street

Warwick House

Clifton

6 Highfield Road

Bristol

Edgbaston

BS8 4HR

Birmingham B15 3ED

Westminster House Fleet Road

Anderson House

Fleet

Clinton Avenue

Hants

Nottingham

GU13 8PD

NG5 1AW London, Eastern and Southern Northern Region

Areas

Commerce House

Clifton House

St Alban’s Place

83-117 Euston Road

Leeds

London

LS2 8HH

NW1 2RB

Westgate House

39 King Street

Westgate Road

Thetford

Newcastle upon Tyne

Norfolk

NE1 1TJ

IP24 2AU

North West Region

Suites 3-5

Boulton House

Business Centre

17-21 Chorlton Street

1-7 Commercial Road

Manchester

Paddock Wood

M1 3HY

Kent TN12 6EN

THOROGOOD PROFESSIONAL INSIGHTS

140

APPENDICES

Scotland

Wales

Franborough House

3 Purbeck House

123-157 Bothwell Street

Lambourne Crescent

Glasgow

Llanishen

G2 7JR

Cardiff CF4 5GJ

Employment Tribunals Head Office Employment Tribunals Service 7th Floor 19-29 Woburn Place London WC1H 0LU Tel: 020 7273 8666

Enquiry Line The offices of the tribunals are open from 9.00am to 5.00pm Monday to Friday. Maps are sent to the parties showing the location of the office where the hearing has been arranged and giving details of local car parking and facilities for refreshments and phones. Enquiry Line: 0345 959775.

Aberdeen

Bedford

Mezzanine Floor

8-10 Howard Street

Atholl House

Bedford

84-88 Guild Street

MK40 3HS

Aberdeen

Tel: 01234 351306

AB11 6LT

Fax: 01234 352315

Tel: 01224 593137 Fax: 01224 593138

Belfast Office of the Industrial Tribunals and

Ashford

the Fair Employment Tribunal Long

Tufton House

Bridge House

Tufton Street

20-24 Waring Street

Ashford

Belfast

Kent

BT1 2EB

TN23 1RJ

Tel: 01232 327666

Tel: 01233 621346

Fax: 01232 230184

Fax: 01223 624423

THOROGOOD PROFESSIONAL INSIGHTS

141

APPENDICES

Birmingham

Edinburgh

Phoenix House

54-56 Melville Street

1-3 Newhall Street

Edinburgh

Birmingham

EH3 7HF

B3 3NH

Tel: 0131 226 5584

Tel: 0121 236 6051

Fax: 0131 220 6847

Fax: 0121 236 6029

Exeter

Bristol

10th Floor

1st Floor

Renslade House,

The Crescent Centre

Bonhay Road

Temple Back

Exeter

Bristol

EX4 3BX

BS1 6EZ

Tel: 01392 279665

Tel: 0117 929 8261

Fax: 01392 430063

Fax: 0117 925 3452

Glasgow

Bury St Edmunds

Eagle Building

100 Southgate Street

215 Bothwell Street

Bury St Edmunds

Glasgow

Suffolk

G2 7TS

IP33 2AQ

Tel: 0141 204 0730

Tel: 01284 762171

Fax: 0141 204 0732

Fax: 01284 706084

Leeds

Cardiff

4th Floor

2nd Floor

Albion Tower

Caradog House

11 Albion Street

1-6 St Andrew’s Place

Leeds

Cardiff

LS1 5ES

CF10 3BE

Tel: 0113 245 9741

Tel: 029 2037 2593

Fax: 0113 242 8843

Fax:029 2022 5906

Leicester

Dundee

Kings Court

13 Albert Square

5a New Walk,

Dundee

Leicester

DD1 1DD

LE1 5TE

Tel: 01382 221578

Tel: 0116 255 0099

Fax: 01382 227136

Fax: 0116 255 6099

THOROGOOD PROFESSIONAL INSIGHTS

142

APPENDICES

Liverpool

Nottingham

1st Floor

3rd Floor

Cunard Building

Byron House

Pier Head

2a Maid Marian Way

Liverpool

Nottingham

L3 1TS

NG1 6HS

Tel: 0151 236 9397

Tel: 0115 947 5701

Fax: 0151 23 1484

Fax: 0115 950 7612

London North

Reading

19-29 Woburn Place

5th Floor

London

30-31 Friar Street

WC1H OLU

Reading

Tel: 020 7273 8575

RG1 1DY

Fax: 020 7273 8686

Tel: 0118 959 4917

London South

Fax: 0118 955 8066

Montague Court

Sheffield

London Road

14 East Parade

West Croydon

Sheffield

CR0 2RF

S1 2ET

Tel: 020 8667 9131

Tel: 0114 276 0348

Fax: 020 8649 9470

Fax: 0114 276 2551

Manchester

Shrewsbury

Alexandra House

Prospect House

14-22 The Parsonage

Belle Vue Road

Manchester M3 2JA

Shrewsbury

Tel: 0161 833 0581

SY3 7AR

Fax: 0161 832 0249

Tel: 01743 358341

Newcastle

Fax: 01743 244186

Quayside House

Southampton

110 Quayside

3rd Floor

Newcastle upon Tyne

Dukes Keep

NE1 3DX

Marsh Lane

Tel: 0191 260 6900

Southampton

Fax: 0191 222 1680

SO1 1EX Tel: 023 8063 9555 Fax: 023 8063 5506

THOROGOOD PROFESSIONAL INSIGHTS

143

APPENDICES

Stratford 44 The Broadway Stratford E15 1XH Tel: 020 8221 0921 Fax: 020 8221 0398

Employment Appeal Tribunals Employment Appeal Tribunal

Equal Opportunities Commission

(Central Office)

Overseas House

Audit House

Quay House

58 Victoria Embankment

Manchester

London

M3 3HN

EC4Y 0DS Tel: 020 7273 1041 Fax: 020 7273 1045

England – Tel: 0161 833 9244 Scotland – Tel: 0141 248 5833 Wales – Tel: 029 20 343552

Information and appeal forms may be downloaded at:

Equality Commission (Northern

www.employmentappeals.gov.uk

Ireland) This body which serves Northern

Employment Appeal Tribunal

Ireland deals with complaints of

(Scotland)

discrimination on the grounds

52 Melville Street

disability, sex, race and religion.

Edinburgh EH3 7HF

Andress House

Tel: 0131 225 3963

60 Great Victoria Street

Fax: 0131 220 6694

Belfast BT2 7BB

Commission for Racial Equality

Tel: 02890 500600

Elliot House

Fax: 02890 331544

10-12 Allington Street London SW1E 5HE Tel: 020 7828 7022

THOROGOOD PROFESSIONAL INSIGHTS

144

APPENDICES

Disability Disability Discrimination Act

Department of Social Security

Helpline

Richmond House

Freepost MID02164

79 Whitehall

Stratford-upon-Avon

London

Warwickshire

SW1A 2NS

CV37 9BR

Tel: 020 7712 2171

Tel: 0345 622633 Textphone: 0345 622 644

Chartered Institute of Personnel and Development

Health and Safety Executive

IPD House

Rose Court

Camp Road

2 Southwark Bridge

London

London

SW19 4UX

SE1 9HS

Tel: 020 8971 9000

Tel: 020 7717 6000

Confederation of British Industry

Her Majesty’s Stationery Office

Centre Point

St Crispins

103 New Oxford Street

Duke Street

London

Norwich

WC1A 1DU

Tel: 01603 622211

Tel: 020 7379 7400

Home Office

Trades Union Congress

50 Queen Anne’s Gate

Congress House

London

23-28 Great Russell Street

SW1H 9AP

London

Tel: 020 7273 4000

WC1B 3LS

(Immigration Helpline:

Tel: 020 7636 4030

020 8649 7878)

National Association of Citizens

Department for Education and

Advice Bureau

Employment

115-123 Pentonville Road

Sanctuary Buildings

London

Great Smith Street

N1 9LZ

London

Tel: 020 7833 2181

SW1P 3BT Tel: 020 7925 5000

THOROGOOD PROFESSIONAL INSIGHTS

145

Other specially commissioned reports BUSINESS AND COMMERCIAL LAW

The commercial exploitation of intellectual property rights by licensing

The Competition Act 1998: practical advice and guidance

CHARLES DESFORGES

SUSAN SINGLETON

£125.00

£149.00

1 85418 285 4 • 2001

1 85418 205 6 • 2001

Expert advice and techniques for the identification and successful exploitation of key opportunities.

Failure to operate within UK and EU competition rules can lead to heavy fines of up to 10 per cent of a business’s total UK turnover.

This report will show you: •

how to identify and secure profitable opportunities

•

strategies and techniques for negotiating the best agreement

•

the techniques of successfully managing a license operation.

Insights into successfully managing the in-house legal function BARRY O’MEARA

£65.00

1 85418 174 2 • 2000

Damages and other remedies for breach of commercial contracts ROBERT RIBEIRO

£125.00

Negotiating the fault line between private practice and in-house employment can be tricky, as the scope for conflicts of interest is greatly increased. Insights into successfully managing the In-house legal function discusses and suggests ways of dealing with these and other issues.

1 85418 226 X • 2002 This valuable new report sets out a systematic approach for assessing the remedies available for various types of breach of contract, what the remedies mean in terms of compensation and how the compensation is calculated.

Commercial contracts – drafting techniques and precedents ROBERT RIBEIRO

£125.00

1 85418 210 2 • 2002 The Report will: •

Improve your commercial awareness and planning skills

For full details of any title, and to view sample extracts please visit: www.thorogood.ws You can place an order in four ways:

•

Enhance your legal foresight and vision

1 Email: [email protected]

•

Help you appreciate the relevance of rules and guidelines set out by the courts

2 Telephone: +44 (0)20 7749 4748

Ensure you achieve your or your client’s commercial objectives

4 Post: Thorogood, 10-12 Rivington Street, London EC2A 3DU, UK

•

t +44 (0)20 7749 4748

e [email protected]

3 Fax: +44 (0)20 7729 6110

w w w w. t h o r o g o o d . w s

The legal protection of databases SIMON CHALTON

Email – legal issues £145.00

SUSAN SINGLETON

£95.00

1 85418 245 5 • 2001

1 85418 215 3 • 2001

Inventions can be patented, knowledge can be protected, but what of information itself?

What are the chances of either you or your employees breaking the law?

This valuable report examines the current EU [and so EEA] law on the legal protection of databases, including the sui generis right established when the European Union adopted its Directive 96/9/EC in 1996.

The report explains clearly:

Litigation costs MICHAEL BACON

•

How to establish a sensible policy and whether or not you are entitled to insist on it as binding

•

The degree to which you may lawfully monitor your employees’ e-mail and Internet use

•

The implications of the Regulation of Investigatory Powers Act 2000 and the Electronic Communications Act 2000

•

How the Data Protection Act 1998 affects the degree to which you can monitor your staff

•

What you need to watch for in the Human Rights Act 1998

•

TUC guidelines

•

Example of an e-mail and Internet policy document.

£95.00

1 85418 241 2 • 2001 The rules and regulations are complex – but can be turned to advantage. The astute practitioner will understand the importance and relevance of costs to the litigation process and will wish to learn how to turn the large number of rules to maximum advantage.

International commercial agreements REBECCA ATTREE

£175

1 85418 286 2 • 2002 A major new report on recent changes to the law and their commercial implications and possibilities. The report explains the principles and techniques of successful international negotiation and provides a valuable insight into the commercial points to be considered as a result of the laws relating to: pre-contract, private international law, resolving disputes (including alternative methods, such as mediation), competition law, drafting common clauses and contracting electronically. It also examines in more detail certain specific international commercial agreements, namely agency and distribution and licensing. For full details of any title, and to view sample extracts please visit: www.thorogood.ws You can place an order in four ways: 1 Email: [email protected] 2 Telephone: +44 (0)20 7749 4748 3 Fax: +44 (0)20 7729 6110 4 Post: Thorogood, 10-12 Rivington Street, London EC2A 3DU, UK

S e e f u l l d e t a i l s o f a l l T h o r o g o o d t i t l e s o n w w w. t h o r o g o o d . w s

HR AND EMPLOYMENT LAW

Employee sickness and fitness for work – successfully dealing with the legal system GILLIAN HOWARD

£95.00

1 85418 281 1 • 2002 Many executives see Employment Law as an obstacle course or, even worse, an opponent – but it can contribute positively to keeping employees fit and productive. This specially commissioned report will show you how to get the best out of your employees, from recruitment to retirement, while protecting yourself and your firm to the full.

How to turn your HR strategy into reality TONY GRUNDY

£129.00

1 85418 183 1 • 1999 A practical guide to developing and implementing an effective HR strategy.

Internal communications JAMES FARRANT

£125

1 85418 149 1 • July 2003 How to improve your organisation’s internal communications – and performance as a result.

Data protection law for employers SUSAN SINGLETON

£125

There is growing evidence that the organisations that ‘get it right’ reap dividends in corporate energy and enhanced performance.

1 85418 283 8 • May 2003 The new four-part Code of Practice under the Data Protection Act 1998 on employment and data protection makes places a further burden of responsibility on employers and their advisers. The Data protection Act also applies to manual data, not just computer data, and a new tough enforcement policy was announced in October 2002.

MARK THOMAS

£69.00

1 85418 270 6 • 2001 Practical advice on how to attract and keep the best.

Successfully defending employment tribunal cases

1 85418 008 8 • 1997

This report will help you to understand the key practical and legal issues, achieve consensus and involvement at all levels, understand and implement TUPE regulations and identify the documentation that needs to be drafted or reviewed.

New ways of working STEPHEN JUPP

DENNIS HUNT

£95.00

Why do so many mergers and acquisitions end in tears and reduced shareholder value?

Successful graduate recruitment JEAN BRADING

Mergers and acquisitions – confronting the organisation and people issues

£99.00

£95 1 85418 169 6 • 2000

1 85418 267 6 • 2003 Fully up to date with all the Employment Act 2002 changes. 165,000 claims were made last year and the numbers are rising. What will you do when one comes your way?

t +44 (0)20 7749 4748

e [email protected]

New ways of working examines the nature of the work done in an organisation and seeks to optimise the working practices and the whole context in which the work takes place.

w w w w. t h o r o g o o d . w s

Knowledge management SUE BRELADE, CHRISTOPHER HARMAN

changes to internal disciplinary and grievance procedures

•

significant changes to unfair dismissal legislation

•

new rights for those employed on fixed-term contracts

•

the introduction of new rights for learning representatives from an employer’s trade union

£95.00

1 85418 230 7 • 2001 Managing knowledge in companies is nothing new. However, the development of a separate discipline called ‘knowledge management’ is new – the introduction of recognised techniques and approaches for effectively managing the knowledge resources of an organisation. This report will provide you with these techniques.

Reviewing and changing contracts of employment ANNELISE PHILLIPS, TOM PLAYER and PAULA ROME

This specially commissioned new report examines each of the key developments where the Act changes existing provisions or introduces new rights. Each chapter deals with a discreet area.

Email – legal issues £125

SUSAN SINGLETON

£95.00

1 85418 215 3 • 2001

1 85418 296 X • 2003 The Employment Act 2002 has raised the stakes. Imperfect understanding of the law and poor drafting will now be very costly.

360,000 email messages are sent in the UK every second (The Guardian). What are the chances of either you or your employees breaking the law? The report explains clearly:

This new report will: •

Ensure that you have a total grip on what should be in a contract and what should not

•

Explain step by step how to achieve changes in the contract of employment without causing problems

•

Enable you to protect clients’ sensitive business information

•

Enhance your understanding of potential conflict areas and your ability to manage disputes effectively.

Applying the Employment Act 2002 – crucial developments for employers and employees AUDREY WILLIAMS

•

•

How to establish a sensible policy and whether or not you are entitled to insist on it as binding

•

The degree to which you may lawfully monitor your employees’ e-mail and Internet use

•

The implications of the Regulation of Investigatory Powers Act 2000 and the Electronic Communications Act 2000

•

How the Data Protection Act 1998 affects the degree to which you can monitor your staff

•

What you need to watch for in the Human Rights Act 1998

•

TUC guidelines

•

Example of an e-mail and Internet policy document.

£125

1 85418 253 6 • May 2003 The Act represents a major shift in the commercial environment, with far-reaching changes for employers and employees. The majority of the new rights under the family friendly section take effect from April 2003 with most of the other provisions later in the year. The consequences of getting it wrong, for both employer and employee, will be considerable – financial and otherwise. The Act affects nearly every aspect of the work place, including: •

flexible working

•

family rights (adoption, paternity and improved maternity leave)

For full details of any title, and to view sample extracts please visit: www.thorogood.ws You can place an order in four ways: 1 Email: [email protected] 2 Telephone: +44 (0)20 7749 4748 3 Fax: +44 (0)20 7729 6110 4 Post: Thorogood, 10-12 Rivington Street, London EC2A 3DU, UK

S e e f u l l d e t a i l s o f a l l T h o r o g o o d t i t l e s o n w w w. t h o r o g o o d . w s

SALES, MARKETING AND PR

Implementing an integrated marketing communications strategy

Tendering and negotiating for MoD contracts

NORMAN HART

TIM BOYCE

£99.00

£125.00

1 85418 120 3 • 1999

1 85418 276 5 • 2002

Just what is meant by marketing communications, or ‘marcom’? How does it fit in with other corporate functions, and in particular how does it relate to business and marketing objectives?

This specially commissioned report aims to draw out the main principles, processes and procedures involved in tendering and negotiating MoD contracts.

Defending your reputation Strategic customer planning ALAN MELKMAN AND PROFESSOR KEN SIMMONDS

SIMON TAYLOR £95.00

1 85418 255 2 • 2001 This is very much a ‘how to’ Report. After reading those parts that are relevant to your business, you will be able to compile a plan that will work within your particular organisation for you, a powerful customer plan that you can implement immediately. Charts, checklists and diagrams throughout.

1 85418 251 • 2001 ‘Buildings can be rebuilt, IT systems replaced. People can be recruited, but a reputation lost can never be regained…’ ‘The media will publish a story – you may as well ensure it is your story’ Simon Taylor ‘News is whatever someone, somewhere, does not want published’ William Randoplh Hearst When a major crisis does suddenly break, how ready will you be to defend your reputation?

Selling skills for professionals KIM TASSO

£65.00

1 85418 179 3 • 2000 Many professionals still feel awkward about really selling their professional services. They are not usually trained in selling. This is a much-needed report which addresses the unique concerns of professionals who wish to sell their services successfully and to feel comfortable doing so. ‘Comprehensive, well written and very readable… this is a super book, go and buy it as it is well worth the money’ Professional Marketing International

Insights into understanding the financial media – an insider’s view SIMON SCOTT

This practical briefing will help you understand the way the financial print and broadcast media works in the UK.

European lobbying guide £129.00

1 85418 144 0 • 2000

Corporate community investment £75.00

Understand how the EU works and how to get your message across effectively to the right people.

1 85418 192 0 • 1999 Supporting good causes is big business – and good business. Corporate community investment (CCI) is the general term for companies’ support of good causes, and is a very fast growing area of PR and marketing.

t +44 (0)20 7749 4748

£99.00

1 85418 083 5 • 1998

BRYAN CASSIDY

CHRIS GENASI

£95.00

e [email protected]

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Lobbying and the media: working with politicians and journalists

Managing corporate reputation – the new currency

MICHAEL BURRELL

SUSAN CROFT and JOHN DALTON

£95.00

1 85418 240 4 • 2001

1 85418 272 2 • June 2003

Lobbying is an art form rather than a science, so there is inevitably an element of judgement in what line to take. This expert report explains the knowledge and techniques required.

ENRON, WORLDCOM… who next?

Strategic planning in public relations KIERAN KNIGHTS

£69.00

At a time when trust in corporations has plumbed new depths, knowing how to manage corporate reputation professionally and effectively has never been more crucial.

Surviving a corporate crisis – 100 things you need to know

1 85418 225 0 • 2001

PAUL BATCHELOR

Tips and techniques to aid you in a new approach to campaign planning.

1 85418 208 0 • April 2003

Strategic planning is a fresh approach to PR. An approach that is fact-based and scientific, clearly presenting the arguments for a campaign proposal backed with evidence.

£125

£125

Seven out of ten organisations that experience a corporate crisis go out of business within 18 months. This very timely report not only covers remedial action after the event but offers expert advice on preparing every department and every key player of the organisation so that, should a crisis occur, damage of every kind is limited as far as possible.

FINANCE

Tax aspects of buying and selling companies MARTYN INGLES

Practical techniques for effective project investment appraisal £99.00

RALPH TIFFIN

£99.00

1 85418 189 0 • 2001

1 85418 099 1 • 1999

This report takes you through the buying and selling process from the tax angle. It uses straightforward case studies to highlight the issues and more important strategies that are likely to have a significant impact on the taxation position.

How to ensure you have a reliable system in place. Spending money on projects automatically necessitates an effective appraisal system – a way of deciding whether the correct decisions on investment have been made.

Tax planning opportunities for family businesses in the new regime CHRISTOPHER JONES

£49.00

1 85418 154 8 • 2000 Following recent legislative and case law changes, the whole area of tax planning for family businesses requires very careful and thorough attention in order to avoid the many pitfalls.

S e e f u l l d e t a i l s o f a l l T h o r o g o o d t i t l e s o n w w w. t h o r o g o o d . w s

MANAGEMENT AND PERSONAL DEVELOPMENT

Strategy implementation through project management TONY GRUNDY

£95.00

1 85418 250 1 • 2001 The gap Far too few managers know how to apply project management techniques to their strategic planning. The result is often strategy that is poorly thought out and executed. The answer Strategic project management is a new and powerful process designed to manage complex projects by combining traditional business analysis with project management techniques.

For full details of any title, and to view sample extracts please visit: www.thorogood.ws You can place an order in four ways: 1 Email: [email protected] 2 Telephone: +44 (0)20 7749 4748 3 Fax: +44 (0)20 7729 6110 4 Post: Thorogood, 10-12 Rivington Street, London EC2A 3DU, UK

t +44 (0)20 7749 4748

e [email protected]

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