Speak to an expert – Deminos litigator Ed McFarlane.
Employees can make a claim to an Employment Tribunal if they feel they’ve been treated unlawfully. Reasons for this can include allegations of unfair dismissal, discrimination, or unfair deductions from their pay.
On 26th July 2017, the Supreme Court ruled that tribunal fees for employees making a claim were unlawful. This has led to an increase in claims by 90% – there’s now nothing to stop an employee making a claim against you.
With the possibility of a tribunal claim more likely than ever before, It’s imperative that employers are properly represented in order to refute any cases made against them.
Deminos can help with Tribunal Support
Being faced with an Employment Tribunal is stressful and can be costly if not handled correctly. If you’re threatened by an Employment Tribunal claim, we are on hand to help.
Our fully qualified team led by experienced litigator Ed McFarlane will support you every step of the way. First, we’ll undertake a complete and thorough assessment of your case to determine whether there are any statutory obligations before responding to the claim, then advise on your chances of success and the potential cost of an unsuccessful defence.
Once you have the facts, you can make an informed decision on whether you’d prefer to defend the claim or propose a settlement.
Meet our Employment Law Specialist – Ed McFarlane
Our clients are advised and represented by our litigator, Ed McFarlane. Ed has 15 years’ experience of Employment Tribunal representation throughout the UK. He’ll handle your case from drafting the defence, through to advocacy at hearings.
Throughout his career, Ed has overseen cases ranging from unpaid wages to multi-party, multi-claimant cases covering a wide range of claims. These include unfair dismissal, discrimination, public interest disclosures (whistleblowing) and TUPE.
Ed has appeared in the Employment Appeal Tribunal before High Court judges, dealing with issues as diverse as mitigation of loss, Tribunal procedure, redundancy selection, and sexual harassment claims. Ed has established legal precedents on perversity in procedural matters, and in mitigation of loss in breach of contract claims.
In addition, Ed also contributes to a leading legal email update news letter read by over 28,000 subscribers, including High Court and Employment Tribunal judges.
How do Employment Tribunals work?
Ed will advise you at each stage of the tribunal process.
The Employment Tribunal will post a claim form to the ‘respondent’. Typically, a respondent is the employer or former employer of the ‘claimant’, but sometimes it can be an individual as well, for example a manager who is alleged to have been discriminatory.
Any respondent then has 28 days to present a response to the Tribunal. This is a key stage with a strict time limit, where the respondent either defends or admits the claim and presents a response form.
Ed and the team prepare a case by drafting a response form for a client and presenting it to the Tribunal. After submitting the response form, there will be an initial consideration stage where an Employment Judge will consider whether the case has arguable complaints and defences. This is so that obviously weak cases which should not proceed can be dealt with quickly.
After the response stage, there may be a preliminary hearing to discuss procedural matters, clarify the issues and set a timetable for the final hearing. At a preliminary hearing, often only the parties’ representatives need to attend.
From here, the parties provide each other their ‘disclosure’, which is relevant documentation, (letters, contracts, emails, policies, payslips etc.) and the respondent is usually responsible for producing a ‘bundle’ (the documents and evidence that are relevant to the claim).
Working from the bundle, the parties produce witness statements (precognitions of evidence in Scotland). Conciliation can be considered at any point to try to resolve the claim before the final hearing, which would involve a settlement being agreed between the parties. If the case cannot be resolved this way, it will proceed to a hearing.
Employment Tribunals are held either in Tribunal offices (at busier venues) or in Court buildings, such as a County or Magistrates’ Court. Final hearings are held in public in individual tribunal rooms. Simpler cases are heard by an Employment Judge sitting alone. More complex cases, such as discrimination claims, are heard by a panel of three; the judge and two ‘wing’ members, who will decide the case.
There will be an Employment Judge who will conduct the hearing, along with any panel members if needed. There’ll also be representatives for the employer and the claimant, and witnesses for both parties. Members of the public can watch if they like, but the press rarely attend Tribunals.
The employment tribunal works similarly to a court but is less formal. For example, there are no wigs or gowns, the procedure can be flexible, and statements are no longer read out loud by witnesses as they are pre-read by the Tribunal. However, evidence is taken on oath and there are rules about what happens and who speaks when.
The representatives will take turns calling their witnesses to give evidence, witnesses are cross-examined by the other parties, and the Tribunal panel will ask questions. Then, the representative of a witness has a chance to ‘re-examine’ their witness, which is to ask questions about what the witness said if it is needed to clarify matters (e.g. if the witness gets a date wrong).
After the evidence, the parties sum up their cases, and the Tribunal retires to consider a verdict. In England and Wales, they like to give verdicts on the day, in Scotland, they often are sent out in the post in a written judgment.
It’s not unusual for delays to happen at a hearing. Tribunals often over-book on the basis that a certain number of claims will settle at the last minute (on the morning or during the hearing), and matters may come up during the hearing which lead to adjournments whilst disputes are sorted out. Most people find giving evidence quite an ordeal, but most cases involve witnesses spending no longer than a few hours giving evidence.