Representation at the Employment Tribunal for Employers

Overview of Employment Tribunal Representation for Employers

Having to deal with an employment tribunal case can be tough. Firstly, there are many stages in the process.

Initially, you can act on your own behalf before an employment tribunal as an employer. However, your chances of succeeding in your defensive endeavours can get very slim if you don’t seek assistance from competent representatives that can place you on the right track when tackling intricate employment tribunal claims from employees and other parties.

As an employer who is notified of a tribunal claim, you ought to ensure that an agreement may be reached before the judicial process begins. An expert employment law solicitor at IAS Law can help you from the very moment you suspect that a case may reach those levels. Call us today on +44 (0)333 414 9244.

What Is the Employment Tribunal?

Employment tribunals are independent tribunals with statutory jurisdiction that issue rulings in disputes surrounding employment law. These tribunals operate in England, Wales, and Scotland and are part of the UK tribunals system.

These employment tribunals can hear claims from either an employee or, in rare instances, a transferee in a TUPE process. These claims are submitted in a prescribed form and could be made by multiple claimants.

Employment tribunals can be composed of one judge sitting alone or a multi-disciplinary panel consisting of one employment judge and two other qualified members versed in non-legal matters. Most hearings are conducted and decided by the judge alone.

Which Employment Tribunal Claims May Warrant the Involvement of Employment Law Solicitors?

Employment tribunal claims vary in nature and complexity. Some of the claims that employees could make before these tribunals include:

• Unfair, wrongful, or constructive dismissal.
• Redundancy
• Equal pay
• Discrimination or harassment in the workplace
• Unlawful wage deductions
• Working time breach

Solicitors may be hired as litigators in any of these cases, meaning that they can act on behalf of both claimants and respondents in the tribunal room. We have covered the relevant claims in more detail below.

Unfair, Wrongful, or Constructive Dismissal

Employers are allowed to dismiss employees within two years after the employment contract was signed. Beyond that time period, all dismissals must be made on specific legal grounds and following due procedure according to the guidelines contained either in the company’s handbook or the Acas Code of Practice on disciplinary and grievance procedures.

Unfair Dismissal

The grounds for dismissals, however, giving ample leeway to employers, must be well established. Employees could find any justification to file unfair dismissal claims before an employment tribunal, at which moment you’ll need to build a good defence. We at IAS Law can help you devise a defensive strategy that tackles all possible claims that could be raised before the judge against you.

An unfair dismissal claim can be made against you if the dismissal was not grounded in the following reasons:

• Poor performance
• Persistent and impeding illness
• Redundancy
• Gross misconduct
• Statutory restrictions
• Legal or factual impossibility to carry on with the contract
• Another substantial reason (prison sentence, refusal to accept a company’s reorganisation, etc.)

Constructive Dismissal

Another related claim that may often arise in employment tribunal conflicts is that, rather than having been dismissed, the employee was forced to resign owing to a serious contract breach on the part of the employer, in which case the breach would have to be demonstrated to have been grave enough to warrant resignation.

Wrongful Dismissal

Finally, dismissals, while fair, could be deemed wrongful if they were done while breaching other contract terms, such as the obligation to give proper notice.

For advice or support in any of the above, call us today on +44 (0)333 414 9244.

Redundancy

Dismissals due to redundancy entitle employees to charge a statutory redundancy payment from the employer. If this payment is not made, he/she can submit a claim to an employment tribunal.

Furthermore, a fair redundancy process ought to be carried out, lest the employee is given grounds for an unfair or wrongful dismissal claim.

Equal Pay

Equal pay refers to the obligation on the part of hirers to offer the same wage conditions to both male and female staff members according to the rules laid out in the Equality Act of 2010.

For this claim to succeed, the employee must show that the hirer had different wage parameters for males and females while offering the same position.

Discrimination and Harassment in the Workplace

Discrimination and harassment are oftentimes considered the same offence, but they have a slightly different modus operandi.

Discrimination

Discrimination is any action that disregards any person on account of race, religion, political or trade union affiliation, or any other similar characteristic. It doesn’t necessarily give rise to any hostility of verbal or physical nature.

Harassment

On the flip side, harassment consists of any action that aims to either verbally or physically offend an individual or create the conditions for hostile behaviour towards him/her based on any of the aforementioned traits.

Both offences are likewise covered in the Equality Act 2010.

Unlawful Wage Deduction

Unlawful wage deduction claims are not only reduced to unauthorised deductions but also comprehend cases of underpaid and even unpaid wages.

To elude any unlawful wage deduction claim, employers should only deduct wages in these three circumstances:

• When it’s been authorised by statute.
• When the employment contract permits it.
• When the employee expressly agrees to the deduction.

Lawful Deductions

The following deductions can’t be tackled by employees via tribunal claims:

• Those made to reimburse the employer due to overpayment or expenses incurred by employees when performing their duties.
• Payments to pension schemes and similar third parties.
• Deductions made on account of a strike or other action.
• Deductions that were made in light of a court or tribunal order.

Working Time Breach

Working time rights are collected in the Working Time Regulations 1998. This normative text establishes a series of parameters that employers must abide by when planning shifts.

Any breach of the WTR may be interpreted as an automatic unfair dismissal according to case law (with the Simoes v. De Sede UK Lrt. decision by the Employment Appeal Tribunal serving as precedent). This claim can be put forward even if the employee doesn’t actually work the shift as instructed.

What to Expect from the Employment Tribunal Proceedings

Employment tribunal procedures are contentious in nature, though they normally allow for conciliation at any stage. Here’s what you should expect.

1. Early Conciliation

Save for a few exemptions, employment tribunals won’t receive claims unless the claimant presents an “early conciliation certificate”. Furthermore, before any type of claim is made, the employee must first inform Acas.

What is Acas?

Acas stands for Advisory, Conciliation and Arbitration Service. It’s a public non-departmental body that’s sponsored by the Department for Business, Energy & Industrial Strategy. Its main task is to provide employment relations services by offering advice to employees, employers, and representatives, as well as mediating between them whenever an employment conflict arises

Acas is also responsible for offering employees “early conciliation”, eliciting peaceful resolutions to employment issues before they escalate. If the claimant agrees, the service will notify you so that peaceful talks may begin. We may be able to offer guidance and even assist you during these talks, which take place over the phone and last up to six weeks.

Acas also supervises COT3 agreements whereby respondents agree to pay the claimant some money. The service can’t force the payment, but they may offer guidance to employees about what to do in those scenarios and may also call you to remind you of the agreement.

The service will not only be able to assist during early conciliation phases but also throughout the judicial process at the behest of the employment tribunal.

2. The Claim

If no agreement was attained, and after obtaining an “early conciliation certificate” (if applicable), the claimant is then entitled to file the claim before the tribunal. which, as said before, must be done by completing a claim form.

If the judge finds that the claim fills the criteria and that the tribunal has jurisdiction to consider it, a copy of the claim form shall be sent to the employer, along with a prescribed response form.

3. Response

After you receive your notification from the employment tribunal, you have 28 days to fill out the response form and submit it. The response must contain the following:

• Your full name
• Your address
• Whether you have any objections or wish to resist any part of the claim

Time limits and extensions

You may apply for an extension so as to deliver the response form at a later date. If you respond beyond the 28-day limit, you could accompany your response form with an extension application, and your response may not be rejected if the extension is granted.

Extension applications could be objected to by the claimant within 7 days of application receipt.

If your response gets rejected, you can ask for reconsideration in writing within the next 14 days after you were notified of the rejection.

What Happens In Case of Rejection or Lack of Response?

If the employment tribunal deems the rejection as correct, or if there was no response issued in due time, the employment judge may either try to decide based on the information and material provided by the claimant and, if so, a decision will be reached. If no determination is yet made, the judge may ask for a hearing in which the respondent shall participate, but only to the extent allowed by the judge.

What happens If the Response is Accepted?

If the response gets accepted, the procedure shall continue, and the tribunal will send a copy of the approval to all the involved parties.

4. Initial Consideration

After the response is approved, the judge will analyse all the documents relevant to the case presented by both parties to determine whether the claims and defences follow suit and are founded. If necessary, one of the parties may be summoned to provide additional information.

Alternatively, the judge may find it opportune to propose judicial mediation or any other form of dispute resolution mechanism via a case management order.

5. Hearings

You will be given a minimum of 14 days’ notice prior to the hearing, during which time you should prepare all pertinent documentation that could be useful to support your counterclaims.

During these hearings, all the evidence will be cross-examined by all sides, including the judge. Tribunals are somehow free to conduct these hearings as they deem fair within limits. and are not bound to any rule when admitting evidence.

You will be given another notice for a final hearing no less than 14 days before its date.

Witness statements

During this stage, witness statements are also brought as evidence before the employment tribunal, so it’s important to prepare them beforehand so that they don’t disclose unnecessary information that could compromise your case. These witness statements can be inspected at any time during the hearing by members of the public, except for those parts of the statements that the judge may rule out.

Our solicitors at IAS Law are experts in witness preparation and can give a timely confidence boost in order to avoid any mishaps during their oral presentation of facts. Contact us today for assistance.

6. Decision

After the final hearing, the judge (or the panel) will issue the decision on the spot. They may likewise send the parties into a waiting area or make a “reserve judgement”, depending on the complexity of the case. A “reserve judgement” is a ruling whereby the tribunal postpones the decision to a later date, with the commitment to send a copy of the ruling to each party.

If the decision is made known orally, you may want to ask for a written copy so that you can appeal it.

7. Appeal

Employment tribunal decisions can be appealed before the Employment Appeals Tribunal (EAT).

However, in order for an appeal to be considered, you must demonstrate that the original judge made legal errors when deciding, such as:

• Incorrect application of the law (error in interpretation) or application of the wrong law.
• A procedural error that could have affected the decision
• Lack of evidence to support the ruling
• Bias towards the other party

What You Should Look For When Immersed In an Employment Tribunal Process

An employment tribunal claim can divert you from your main business goals and make you waste considerable time, effort, and money. At a tribunal level, you’ll also be subjected to strict timescales and procedures that you are obliged to comply with, for failure to do so may bring you terrible outcomes.

As an employer, you must always think ahead and provide yourself with early advice on how to proceed should you be called to respond to a claim made by an employee or worker.

These are some of the things to consider when faced with an employment tribunal claim:

• Time: You should not rest assured that matters may be resolved during the early conciliation phase. If that fails, you should already have a blueprint on how to build a solid defence strategy that covers every possible flank, and you’ll be given little time to react if matters get contentious.
• Eligibility of the Claimant: Whether an individual is even eligible to make claims against you should be one of your first concerns. If you manage to demonstrate that, from the onset, the claimant does not have any entitlement against you, you may have saved a lot of time and effort in tedious hearings and paperwork.
• Evidence: Regardless, you should always prepare for the worst. Try to gather as much proof (documentary or otherwise) as possible in anticipation of your tribunal hearing.
• Costs: You may have to assess whether it makes financial sense to bring a tribunal case down to a final hearing or try to settle for a slightly heftier compensation instead to save money in legal fees and other expenses that can potentially be incurred down the line.

How IAS Law Can Help

Our solicitors at IAS Law are equipped to represent you in employment tribunal procedures, accompanying you every step of the way, from the pre-litigation and Acas early conciliation stages through the final decision and appeal.

Our team has demonstrable experience helping employers cope with all the heavy legal burdens that they are expected to bear during these harsh trials. We guarantee to do the heavy lifting when it comes to gathering evidence, building a strong defence, and covering your tracks so that you won’t get caught with compliance issues during the process.

To find out more about the services we provide, call us at +44 (0)333 414 9244. We are delighted to help!