It is common for disputes to occur between employees and employers and many of these disputes will go to an employment tribunal.

You may feel that you have a good relationship with your employees but having a strategy in place to deal with tribunals is a good place to start. Employees are now being favoured more and more by employment law, so you could lose out if you are lacking any sort of preparation.

How do they judge employee tribunal hearings?

Hearings are often carried out by three adjudicators, one of which is an employment judge, the other is a lay member who has been nominated by the employers’ organisations and the other is nominated by a union body.

It is an impartial process but those cases regarding unfair dismissals start with the assumption that the employer has a case to answer and any decisions that are made follow the statute law, the Acas code of practice and they require a majority vote.

The tribunal process and how it begins.

The majority of tribunal hearings start with the employee submitting an ET1 form where the complaint is detailed and explains whether the statutory dispute resolutions were followed correctly. The employer (you) then submits an ET3 form as a response that highlights the case to be taken to tribunal. There is a possibility that any right to defend yourself could be lost should you not send your response within 28 days. A date is given for the hearing and a copy of the papers are sent to Acas which attempts to settle the case out of court.

Is there any possibility of reaching a settlement with the claimant?

There is less risk involved and savings in both time and costs if it is settled outside of a tribunal. Settlements often involved a sum of money which is agreed between the claimant and the employer, sometimes, a reference is included which often includes nothing more than the dates of employment.

There are two ways to settle. A settlement agreement or a COT3 settlement but both settlements are legally binding.

How to prepare for the hearing?

Preparing correctly is vital as this will have a profound effect on the outcome. Start by looking for technical flaws such as whether the employee has less than two years’ service where they would not have the right to claim unfair dismissal.  Also look to see if an agreement can be reached amicably. Costs can be high so take this into consideration but also look at the possible benefits because defending yourself can show other employees that you will not be taken advantage of.

Ensure that you prepare evidence and even request a pre-hearing review to back up your case and if possible obtain witness statements.

How is an employee tribunal carried out?

A tribunal hearing is not a court hearing and the process is different, however, it does have the same aim which is to have the correct outcome. In cases of unfair dismissal the employer begins and in cases of discrimination the employee goes first therefore the structure is not fixed. Costs are paid by each party and claimants cannot claim legal aid.

There is a preference for witnesses instead of written statements and informal questioning takes place and senior witnesses are the better choice when it comes to explaining employment policies but be prepared to call on expert witnesses.

How the decision is made and is there a possibility of appeal?

Once a decision has been made it will be sent in writing to both parties and decisions are often made in a few days but it can be longer for more difficult cases.

If you feel that a decision is unfair then you can appeal within 6 weeks and an investigation will take place.

How are awards determined?

Awards for unfair dismissal consist of basic and compensatory rewards. Basic rewards are worked out using a fixed formula which looks at age and service and has a limit of £13,500.  Compensatory awards look at how unfair the dismissal was and any loss of earnings. There is a cap of one year’s gross wages with a maximum of £74,200.

Awards given for discrimination have no cap and it is possible for claimants to claim compensation for any offence taken with break of contract awards being capped at £25,000.

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