Until now, the general approach has been that a company cannot claim privilege against its own...
When Employment Tribunals first came into existence in the early 1970’s, they were designed as a simple, informal and straight forward forum for resolving employment disputes. The intention was that the parties would not normally be represented by lawyers.
Such has been the increase in the volume and complexity of legislation (the current Butterworths Employment Law Handbook is now 50% longer than its first edition) that fully understanding employment law is an impossible task for an employee or an employer.
It is essential to take professional advice at an early stage when bringing or defending a claim. If advice on the merits and value of a case is taken at an early stage this can reduce or avoid the costs and time involved in a lengthy litigation process.
Employment tribunal awards
Compensation is unlimited for discrimination complaints and also the statutory cap on unfair dismissal awards does not apply for automatic unfair dismissals for health and safety reasons or for making a protective disclosure (whistleblowing) or in relation to selection for redundancy for either of the above reasons.
Otherwise the maximum claims for unfair dismissal are capped at a maximum basic award of £21,000 and the compensatory award is capped at £115,115 or 12 months’ pay – whichever is lower (for dismissals up to 5th April 2025) .
There are considerable traps for the unwary in terms of uplifts or reductions in awards for failure to follow the ACAS Code of Practice.
There is the increasing risk of orders for costs being made in the event that the Tribunal is satisfied that a party has acted vexatiously, abusively, disruptively or otherwise unreasonably in the way in which the proceedings have been conducted or if the claim or response had no reasonable prospect of success.
The employment tribunal hearing
The Employment Tribunal panel consists of an Employment Judge sitting alone for simple cases like unfair dismissal or unlawful deductions from wages. A panel of three will sit to determine cases involving discrimination or whistleblowing. The Employment Judge is a qualified lawyer, either a barrister or a solicitor and will be either a salaried Judge or a fee paid Judge (a part time Judge). One of the panel members is usually from an employer background and the other from a Union background. The intention is that the Tribunal acts as an industrial jury in determining the claim.
The format for the Tribunal hearing is generally that at the start of the case the Tribunal will meet with the parties and agree with them what issues are to be determined and will also set a timetable for the hearing. The Tribunal will then conduct it’s preliminary reading before the evidence starts.
The party on whom the burden of proof lies will normally give evidence first. In an unfair dismissal claim this is normally the employer unless it is a constructive unfair dismissal claim in which case the employee will go first. In a discrimination claim it is normally the employee who goes first.
Witness statements will be taken as read and usually the Tribunal will proceed straight to cross-examination of the witnesses. Following cross-examination the party will have an opportunity to re-examine the witnesses.
At the end of the first party’s case the next party will go ahead with their evidence and at the conclusion of the evidence both sides will get an opportunity to sum up their cases.
The party that gave evidence first would generally get the last word and go last at the submission stage.
The Tribunal will then retire and will either make a decision on the day or the next day (if sufficient time is available) or will reserve its decision and give this in writing.
Employment Tribunal decisions are now published online. It is important that the parties appreciate this when attending at the Employment Tribunal hearing. The Tribunal does not have any discretion to decide not to publish the decision online and once the decision is online it will remain there for the foreseeable future.
Our employment tribunal expertise
Our employment team has considerable experience in dealing with Employment Tribunal claims for employees and employers and has an admirable “win record “.
We have experience of dealing with all types of tribunal claims including –
- Unfair dismissal
- Discrimination
- Breach of Contract/ Wrongful dismissal
- Whistleblowing
- Deductions from wages
- Redundancy Payments
Our Head of Department’s position as a former part time Employment Judge puts us in a strong position to advise employers and employees regarding their prospects of success in the Employment Tribunal.
All of the team’s lawyers are employment law specialists.