Stages of a tribunal hearing

It is no longer possible to submit a claim to a tribunal without contacting Acas. However, the three-month period to submit a claim to a tribunal (six months for equal pay or redundancy pay cases) remains.

The period spent in Early Conciliation effectively ‘stops the clock’, so the three-month period starts once Early Conciliation ends unsuccessfully – this could be one day or six weeks. There is always one month after Early Conciliation fails to submit a tribunal claim. Nevertheless, the situation still remains that notification of a hearing does not necessarily imply that you will be unable to reach an agreement. Normally arrangements for the hearing and negotiations will proceed in parallel and your legal representatives will work to reach an agreement.

The first stage is a sifting process, carried out by an employment judge, which will strike out cases or parts of cases that have ‘no reasonable prospect of success’. The second stage is a preliminary hearing, which is a combination of case management discussions and pre-hearing review. The preliminary hearing is usually conducted by an employment judge alone, often by telephone. It generally considers technical issues such as jurisdiction and amendment of claim arguments. It is also likely to consider alternative methods for settling the dispute. It may also set the time and length of the final hearing.

The final hearing is usually held in public (although some evidence may be heard in private) and, depending on the subject matter, is heard by a chairman sitting alone or before a full panel (see below). It decides:

• whether the claim succeeds or fails and, if it succeeds 

• what remedy is appropriate.

The final hearing will also consider costs. It is not unusual for the liability and remedy/costs aspects to be considered at separate hearings. Appeals from employment tribunals go to the Employment Appeal Tribunal and then onto the Court of Appeal and, ultimately, the Supreme Court. As many aspects of employment law now come from European Directives, questions on points of law can be referred to the European Court of Justice.

The tribunal is usually composed of three members, whose role is to weigh up the evidence and make findings on the basis of the law. The employment judge is appointed by the Lord Chancellor, and must be a barrister or a solicitor. Two lay members with practical experience in employment relations (one on the employer’s side and one on the employee’s) are appointed by the Secretary of State. There are categories of hearing where an employment judge can sit alone, but they do not always choose to do so. Employment tribunals have the power to forward whistleblowing allegations, otherwise known as protected disclosures under the 1998 Public Interest Disclosure Act, to the relevant authorities.

Fees

There are two levels of case – Type A cases are low value and relatively simple. They include claims for holiday pay, wages and redundancy pay. Type B claims are more complex and cover unfair dismissal, discrimination and whistleblowing. For both types of case there are two fees – an issue fee and, if the case is not sifted out or withdrawn, a hearing fee. In cases where a worker cannot afford to pay the fees they will be able to apply for remission. In cases where the employee is successful the tribunal will order the employer to reimburse the fees as part of the settlement. A written answer in the House of Commons in May 2014 indicated that 24% of remission fee applications between 29 July and 31 December 2013 were granted in part or in full. However, as most claimants did not apply for remission, in practice this means that only 5.5% of all claims during this period received any fee remission.