Employment Tribunal - Procedure

Procedure

There are separate Employment Tribunals for Scotland, and for England and Wales. A claim may not be presented in Scotland for proceedings in England and Wales, and vice versa, but it is possible to transfer proceedings between the two jurisdictions in certain circumstances. Since 2004, the same Rules of Procedure have governed both jurisdictions, with references to the appropriate civil law nomenclature differences between them. Scottish Employment Tribunal practice follows Scots civil law, and differs markedly from the procedure used in England and Wales.

Employment Tribunals are constituted and operate according to statutory rules issued by the Secretary of State. These rules, known as the Employment Tribunals Rules of Procedure, set out the Tribunals' main objectives and procedures, and matters such as time limits for making a claim, and dealing with requests for reviews. The Rules for appeals are governed by the separate Rules of the Employment Appeal Tribunal.

A party making a Claim has to present (i.e. physically deliver) a valid Claim Form, on a prescribed form, to an Employment Tribunal office within the appropriate time limit. A Claim Form can be presented electronically (over the internet or by e-mail). If a Claim Form is late, even by a few seconds, then the Employment Tribunal may not be permitted to hear it and the claim may be dismissed on that basis alone, without a consideration of the merits, at a Pre-Hearing Review.

A party defending a claim has to present a Response Form (a prescribed form) to the Employment Tribunal handling the claim within 28 days of being sent the Claim Form by the Employment Tribunal. If a party fails to present a Response Form, then it will be debarred from taking part in proceedings, which may proceed undefended.

The Employment Tribunals are expected to reject a Claim Form or a Response Form if it is not provided on a prescribed form. Also, certain information must be provided on the form for it to be valid and accepted.

The rules concerning time limits are complex but the typical time limit for making a claim is three months from the date of the act complained of, such as being unfairly dismissed or not being paid wages. The Employment Tribunals may grant an extension of time to bring a complaint if certain conditions are met, the test that applies depends upon the complaint with three broad categories. A complaint of Unfair Dismissal, breach of contract, unlawful deduction from wages and other similar claims can only be considered if it was not reasonably practicable for the complaint to have been presented before, and if the complaint is presented within a reasonable time thereafter. This is a matter of evidence for the person bringing the claim . In discrimination complaints, the time limit is less strict, and a claim may be heard if it is late if it is considered to be just and equitable to do so.

Time limits of six months apply for claims for Equal Pay (taken from the end of employment with no extensions at all), and for a redundancy payment (with a consideration as to whether or not it was reasonably practicable to present the claim in time).

Claims are normally initiated by individuals, and normally responded to by employers, or former employers, or trade unions. The terms "claimant" and "respondent" are used to describe the parties involved in Tribunal proceedings. Normally each party pays its own costs. Tribunals will order one party to pay the other party's costs in exceptional circumstances, where it is claimed that one party has claimed vexatiously. There is now 64 different jurisdictions which an employee can bring a tribunal for.

If a former employee brings a claim for breach of contract, then the defending employer has a limited right to bring a counter-claim for breach of contract against a former employee. However, an employer may not bring a claim for breach of contract if an employee is complaining simply of Unfair Dismissal (which is not a claim for breach of contract but a statutory claim). In all cases, the Employment Tribunal may not award damages that exceed £25,000 for all claims for breach of contract.

One peculiarity of the Employment Tribunals is that a claim for breach of contract cannot be brought until the employee's employment has ended, and a claim can only be brought if it arises or is outstanding on the termination of employment. The Employment Tribunals also can only hear certain types of claim for breach of contract, under the Employment Tribunals (Extension of Jurisdiction) Orders 1994, which are Statutory Instruments. There are two Orders, one for Scotland and one for England and Wales.

Both an employer and an employee may bring claims for a reference to be made to an Employment Tribunal for a declaration as to the contents of a statement of particulars of employment, which may arise if there is a dispute as to the content of a contract.

Tribunals are intended to be informal and to encourage parties to represent themselves. There is no special court dress or complex civil procedure rules as at a County Court.

The confidential use of conciliation is encouraged, and parties have an ACAS officer assigned to most claims to assist the parties in reaching a binding agreement to end the claim. All communications with ACAS are subject to privilege and are confidential unless the party waives that right. The parties may also settle a claim by a Compromise Agreement, or, if at a hearing, by drawing up a Tomlin Order and asking the Employment Tribunal to agree to the disposal of the case in accordance with that Order.

If a person habitually and without reasonable excuse brings vexatious proceedings in the Employment Tribunals, a government law officer may apply to the Employment Appeal Tribunal for an Order declaring that person to be a vexatious litigant, which has the effect of barring that person from bringing further proceedings in the Employment Tribunals without the consent of the Employment Appeal Tribunal.