Where a dispute arises in an employment relationship, the matter will be dealt with by the UK's employment tribunals. This includes issues relating to:
- Employment contracts;
- Discrimination claims;
- Unfair dismissal claims;
- Wrongful dismissal claims;
- Breach of contract or covenant;
- Whistleblowing bonus;
- Commission claims; and,
- Redundancy
Employment disputes can affect a business more broadly and can potentially damage the reputation of the business and affect its finances. It is therefore crucial that any matters are resolved as quickly as possible.
The Process of Employment Litigation
Employment disputes are resolved by employment tribunals, who are an independent judicial body. Tribunals are generally open to the public and evidence is given under oath or affirmation. The tribunals, however, cannot provide legal advice.
Employment tribunal claims must be brought within three months minus a day of the date that an employee is dismissed. This is suspended where there is an early conciliation process in place but begins again once the conciliation process ends.
The types of claims that can be heard by a tribunal are:
- Unfair dismissal claims: Employees have to have been employed for one year before they can claim unfair dismissal (if employment began before 6th April 2012) or for at least two years if employment began after 6th April 2012. These claims arise when the employer fails to follow the correct procedure for dismissing an employee or there is no valid reason for the dismissal. In certain circumstances, a dismissal will be deemed as automatically unfair. It is no longer lawful for an employer to discuss an employee simply because they have reached retirement age.
- Discrimination claims upon dismissal: For this type of claim there is no period of employment required. The discrimination must have been based on a protected characteristic (for example, race, disability, religion, sexual orientation or gender).
- Whistleblowing: Where an employee reports criminal activity or malpractice that falls under "protected disclosure", they can claim their dismissal was wrongful.
Early Conciliation
Before an employment tribunal claim can be lodged, the Advisory, Conciliation and Arbitration Service (ACAS) must be notified for early conciliation. An ACAS Conciliator who is both independent and impartial will then try to help the parties to resolve their differences. The role of the conciliator is as follows:
- To explain the process to the parties;
- To encourage them to use other procedures such as disciplinary and grievance as opposed to litigation;
- To explain how the tribunals will make their decision and determine the award;
- Discuss all options available to the parties, such as the appointment of an independent arbitrator;
- Help parties see all the issues, including those of the other side; and,
- Discuss all proposals to see if a resolution can be concluded.
Although an ACAS Conciliator can assist with many aspects of conciliation, they cannot:
- advise the parties on whether or not to accept or make proposals;
- take a view on the merits of the claim;
- advise the party on what the likely decision of a tribunal will be;
- take sides; or,
- help either side prepare their case.
The time limit for making a claim is extended during the period of conciliation, which can last up to a month and a half if needed. At the end of conciliation, ACAS issues a certificate with a number that is required in order to lodge an Employment Tribunal claim.
The use of litigation should be viewed as a last resort and ACAS will assist the parties to attempt to resolve the issue using Alternative Dispute Resolution (ADR). The methods used can include negotiation, mediation and arbitration. ACAS lists the key features of conciliation as follows:
- It's voluntary;
- The parties are in control;
- It informs the parties on the strengths and weaknesses of their case;
- It saves time and money, meaning that the dispute is often resolved with a few phone calls;
- Impartial and independent advice;
- It is confidential as opposed to tribunals; and,
- It can restore trust which is crucial where the claimant is still employed by the organisation.
ACAS can also provide further conciliation during a tribunal claim if the parties require it or if an application is made to the tribunal. If possible, the same conciliator will be used throughout. The service can be used right up to the trial date.
Costs
In 2017, the Supreme Court ruled that the tribunal fee regime violated fundamental rights to access to justice and also discriminated against women. The fee to make a claim has therefore been removed completely.
Unsuccessful claimants are also unlikely to be ordered to pay the litigation costs of their employer (unlike the situation in court proceedings). However, the tribunal can order losing employers to pay a penalty as well as any award that they make to the claimant. If the tribunal finds that the employer breached employment rights or there is "one or more aggravating feature", they will have to pay the penalty to the Secretary of State. Depending on the issue, the penalty can range from £100 to £5000. The amount of the penalty is 50% of the compensation awarded with a 50% discount where it is paid within 21 days of the decision being made by the tribunal. The tribunal will take into account the employer's ability to pay before deciding whether or not to impose a penalty.
Contact our Employment Tribunal Solicitors London, UK
The solicitors at Lewis Nedas Law have a broad range of experience in acting on behalf of both employers and employees in litigation and ADR. We identify that workplace issues are highly sensitive and seek to exhaust available ADR remedies to ensure mitigated costs and confidentiality for both employer and employee. For expert advice from our Redundancy. Solicitors, please call us on 02073872032 or complete our online enquiry form.
