Employment Tribunal ProcedureFor Claimant Advisers

By

Elaine Banton 21 April 2008

Introduction

Importance of procedure

Consequences of breaches

Positives of following procedures

PreliminaryBefore issuing a claim

Strengths

Know case

Weaknesses

Know issues

Statutory Grievance ProcedureHave you complied?

Questionnaire Procedures Gather evidence (including statistics) before or

after proceedings have started

Preliminary

Before issuing a claim

Check the law in forceApril and December new acts/regs.

In force

E.g. New SDA provisions Corporate manslaughter – this April

Statutory Dispute Resolution Procedure3 Step Statutory Grievance Dismissal

and Disciplinary Procedure

Step 2 – meeting (right to be accompanied)

Step 3 – appeal (right to be accompanied)

Step 1Letter

Failure to comply with procedures - adverse

consequences for employee and

employer, s 31 EA 2002

Statutory Grievance Procedure

No jurisdiction if grievance not raised with employer first, s32 Employment Act 2002, Canary Wharf Management Ltd V Edebi [2006] IRLR 416

Wait 28 days after grievance before submitting claim to ET

Grievance raised can extend time for further 3 months. Can use time to collate evidence and/or pursue settlement.

Statutory Grievance Procedure

If claim solely about dismissal, no need to raise grievance and grievance will not extend time, Dispute Resolution Regs 2004, SI 2004/752, Reg 6(5), Lawrence v HM Prison Service (UKEAT/0630/06/CEA)

Not extend time against named Respondent, Odoemelam v Whittington Hospital (UKEAT/0016/06/DM, Governors of Alford House v McDonald (UKEAT/0224/07/JOJ)

If SGP breached could lead to uplift or reduction in compensation s31 EA 2002

Statutory Dismissal and Disciplinary Procedure

No jurisdiction if grievance not raised with employer first, s32 Employment Act 2002, Canary Wharf Management Ltd V Edebi [2006] IRLR 416

If SDDP not complied with – s98A ERA automatic unfair dismissal and uplift in compensation.

S98A(2) If SDDP complied with and dismissal still more likely, fair dismissal, Alexander v BridgenEnterprises Ltd [2006] IRLR 422 EAT affirmed by Kelly-Madden v Manor Surgery [2007] IRLR 17 EAT

Composition of Tribunals

Employment Judges – now from December 2007 Employment Tribunals Act 1996, s 3A, The Tribunals, Courts and Enforcement Act 2007Mediation to continue after pilot scheme. ACAS consulted prior to direction being made.Enforcement of ET awards to be enforced via the ET. Not yet in force.

Composition of Tribunals

Employment judge/Chairman sitting alone or panelof 3

Lay members:personnel and trade union backgrounds

Jurisdiction

Who is the employer? Where does the employee work? Where did the Acts complained of take place? Anderson v StenaDrilling Pte Ltd [2006] EAT

Res Judicata and Issue estoppel- Has the claim been brought before?- Could it, should it have been brought before? Henderson v Henderson [1843] 3 Hare 100, Divine- Bortey V London Borough of Brent [1998] ICR 886

ET1 FormInformation required to start a claim - rule 1(4):

(a) each claimant's name(b) each claimant's address(c) each respondent's name(d) each respondent's address(e) details of the claim

(f) whether or not the claimant is or was an employee of the respondent

(g) whether or not the claim includes a complaint that the respondent has dismissed the claimant or has contemplated doing so(h) whether or not the claimant has raised the subject matter of the claim with the respondent at least 28 days before submitting his/her claim(i) if the claimant has not done as described in (h), why he/she has not done so.

Commencing ET Proceedings

ET1 – Claim Form - Mandatory- Must be completed properly- Consequences if not completed, Hamling v

Coxlease School Ltd [2007] IRLR 8 EAT- Remember to refer to greivance relied on if

required- ET may return ET1 if not completed

correctly

Time Limits

3 months usually – unless extensionDiscrimination – just and equitability –wider discretion, Department of Constitutional Affairs v Jones. Court of Appeal [2007] EWCA Civ894, Virdi v Commissioner of Police of the Metropolis [2007] IRLR 24 EATContinuing acts

Unfair dismissal and other claims – not reasonably practicable stricter test, Beasley v National Grid Electricity Transmissions. EAT, 6.8.07 (0626/06) – 88 seconds late, RBS v Bevan(UKEAT/0440/07/LA)

Defending a Claim - ET3

Details sufficient to respondRespondent can accept claim

Jurisdictional points- Wrong person named- Time- s32 EA 2002- Illegal contracts

Case Management ConferenceEmployment Tribunal (Constitution and Rules of Procedure) Regulations 2004

Clarify Issues Prepare for final hearing

Issues PHR required?

Evidence Timetable

AmendmentDeposit

Strike out

Orders for Disclosure

Witness orders

Overriding objective

Further particulars

Amendment to ET1

If amendment required do so as soon as practicable-Selkent rules apply, balance of hardship and injustice test, Selkent Bus v Moore [1996] IRLR 661

- Precise wording of amendment must be given, Ladbrokes Racing v Traynor (UKEATS/0067/06/MT)

Strike out & Withdrawal of Claim

Strike out - ET Rules 2004- Prospects of success- Fair trial possible?

ET does not have power to set aside a notice of withdrawal. Where proceedings have not been dismissed or has been revoked on review or appeal a new claim may commence, Khan v Heywood and Middleton Primary Care Trust [2006] ICR 543

Procedure at Hearing

Relatively informal

Assist ET by preparing: Skeleton arguments

IssuesChronology

Closing submissions

ET will assist litigant in personIf too far and unfair, Birmingham City Council v Laws

EAT 0360/06

Remedies

Declaration of rights

CompensationInjury to feelings, Miles v Gilbank [2006] ICR 12

EATLoss of earnings

Just and equitable – uncapped PI included?

Unfair dismissal and other capped claims

Recommendation

Costs

If party or party’s representative has acted vexatiously, abusively,

disruptively or unreasonably Or misconceived proceedings

Calderbanking can be used,If offer bettered by ET could give rise to costs,

Kopel v Safeway Stores [2003] IRLR 753From Respondent perspective if offer not bettered by ET

Could give rise to costs.

Not follow the event

Appeal or Review

Review – to the ET and 14 days from promulgation of the

Decision/judgment complained of

Appeal to EAT, EAT Rules– 42 days from promulgation of Decision/judgment complained of –

Extension of time only in exceptional cases,Muschett v LB Hounslow, Khan v LPS,

Ogbuneke v Minster Lodge, Tallington Lakes v ReillyEAT 6.8.07 (0281/07;0285/07;0400/07;1870/06)

Written reasonsTime runs from

date on judgement

Referral to ECJ

Power to refer to ECJ, Article 234 of Treaty of Rome, When necessary to enable the court or tribunal to

give judgment.Case usually stayed pending the ECJ’s decision,

Coleman v Attridge Law [2007] IRLR 88 and with age Discrimination and retirement in Heyday judicial review

Johns v Solent SD Ltd UKEAT/0449/07

Employment Tribunals Claims and Procedures Summary

Questionnaire Procedures Gather evidence (including statistics) before

or after proceedings have started

ET1Consider if named Respondent necessary

3 month time limit (except for equal pay)

•Continuing act of discrimination•SGP grievance extends time

Consider if:

ChecklistWhat is the complaint about?Is there more than one complaint? Law changed?Are they eligible to bring a claim?Evidence, Witnesses?Statutory dispute resolution procedureGrievance required?Questionnaire procedure

ET1 Form completed properlyTime limits? –extended?Amendment needed?Issues clarifiedHearing –chronology, issues, closing submissionsRemedy – is there a PI element, Sheriff v KlyneTuggsAppeal or review –time limits