LRD Booklets October 2012

Employment tribunals - a practical guide for trade unionists

Introduction

Introduction

The coalition government is pursuing a programme of radical employment law reforms. The process began shortly after the 2010 election when the commitment was made to review employment laws for “employers and employees, to ensure they maximise flexibility for both parties while protecting fairness and providing the competitive environment required for enterprise to thrive.”

The first significant changes arising from the review of employment tribunal law and practice came into effect from 6 April 2012 with the Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2012, which amended the Employment Tribunal Rules of Procedure. The changes brought in by the Regulations are that:

• the maximum deposit that a tribunal may order to be paid as a condition of continuing with tribunal proceedings, where it determines that the contentions put forward by a party have little reasonable prospect of success, increased from £500 to £1,000;

• witness statements are taken as read, unless the tribunal directs otherwise;

• employment judges can direct that a party pay a witness their costs to attend a tribunal hearing, and the losing party can be ordered to reimburse the winning party for any such costs that have already been paid out; and

• the maximum amount of a costs order that a tribunal may award in favour of a legally represented party increased from £10,000 to £20,000.

In addition, the Employment Tribunals Act 1996 (Tribunal Composition) Order 2012, provides that employment judges will sit alone when hearing unfair dismissal claims unless they direct otherwise. Also, the qualifying period for unfair dismissal cases was increased from one year to two years’ continuous employment from 6 April 2012.

Further reform is due in 2013 as the coalition government continues to roll back employment legislation. Most significantly, from summer 2013 people bringing claims in the employment tribunal will have to pay fees. There will be a fee for lodging the claim (between £160 and £250) and a further one will be due when the claim proceeds to a hearing (between £230 and £950). In addition, there will be a fee of £60 each time an application is made to the tribunal (for example, to request that a witness be ordered to attend, or that the other side release documents) (see Chapter 5).

The introduction of fees is a device that the government hopes will significantly reduce the number of tribunal claims and strengthen the position of employers in the tribunal.

The move has prompted strong criticism from trade unions in particular. TUC general secretary Brendan Barber said: “It is vital that working people have fair access to justice, but introducing fees for tribunals will deter many — particularly those on low wages — from taking valid claims to court. Many of the UK’s most vulnerable workers will simply be priced out of justice. The government’s remission scheme to protect low-paid employees is woefully inadequate, and workers will be more likely to be mistreated at work as rogue bosses will be able to flout the law without fear of sanction.”

Further reforms will take place as a result of recommendations made by Lord Justice Underhill, former President of the Employment Appeal Tribunal, who was invited by the government to lead a fundamental review of the rules of procedure for employment tribunals in November 2011. He reported in July 2012 and his recommendations (which have been accepted by the government) on the simplification of tribunal rules are described in this booklet. The proposals include the merging of case management discussions and pre-hearing reviews into preliminary hearings, introducing express time limits on the length of questioning, new ET1 and ET3 forms, and an increase in the limit on the amount of costs that can be awarded.

Despite the introduction of fees and other reforms, both the threat of bringing a claim as well as actual recourse to a tribunal, remain important tools for reps and union officials and knowing how to navigate the tribunal process is essential.

This booklet is designed to help union reps get a clear understanding of how tribunals operate and improve the chance of claims being accepted and effectively managed to the hearing stage. Case studies are used throughout as well as model documents for guidance and the booklet also:

• specifies the claims that can be brought in a tribunal, along with the associated time limits and qualifying service requirements;

• sets out the requirements for submitting a claim to an employment tribunal;

• provides an overview of the tribunal system, including information on when judges sit alone;

• details what information to include in a schedule of loss;

• how to get documents from the other side; and

• when costs orders may be made.