How to Complain to Employment Tribunals, and Procedures

COMPLAINING TO EMPLOYMENT TRIBUNALS and ET PROCEDURES>

(Based on author’s site www.geocities.com/ethrngs)

Employment Tribunals rule on employees' claims from employers ~below are what claims lie to Employment Tribunals, how -what are involved at Employment Tribunals.

What Employment Tribunals cases involve, before, during, after, are similar whether one is claiming unfair dismissal under the Employment Relations Act, or wrongful dismissal -breach of Contract under Employment Tribunals Act...

So also, whether racial or colour prejudice or sex discrimination in Equal Opportunities laws, or under Employment Rights Act constructive dismissal, asserting a right, whistle blowing, or sexual harassment or race victimization.

The information below, relate to individuals, free remedies, rather than Union collective agreements in labour relations, about workers' in law most often sought by individuals at Employment Tribunals in employment disputes on employment rights.

Industrial relations being about work rights employee complaints in industrial disputes are over workplace rights.

Under employment law employee rights include use of Employment Tribunals in employment disputes to judicially test workers rights in employment relations legislation -whether employment rights were denied.

Most common workplace disputes at Employment Tribunals are employment termination complaints -unfair dismissal under statute law or wrongful dismissal in common law as breach of contract within Employment Tribunals jurisdiction.

Employment Tribunals may only deal with wrongful dismissal complaints after the employment termination has taken place (but it does not matter if one was on one's probationary period, because the contract of employment comes into existence the moment the employer offers the job and the employee accepts it) ~Employment Tribunals awards are normally pay in lieu or notice in writing expressly agreed or what is 'reasonable' (usually a minimum of a week's pay if one is paid weekly, or a month's salary if one is monthly paid) -industrial tribunals also award financially measurable damages in other respects normally if expressly agreed in writing and for financially measurable loss which can be shown to Employment Tribunals to have been in the reasonable contemplation of the parties when contracting [as distinct from 'reasonably foreseeable'] but about half of what County Courts may is what may award Employment Tribunals.

Unfair dismissal claims may be begun only at Employment Tribunals ~the maximum award can be higher for unfair dismissal than for wrongful dismissal -but in employment law one may not complain of this unless one has been employed by the employer for at least a year or it is one of the exemptions e.g. arising from protected acts.

Exceptions in unlawful employment termination as unfair dismissal, in employment legislation, normally, are: if the complaint is that it was because of racial discrimination, or disability or religious belief or sex discrimination or sexual harassment, or in any of those respects because one with good reason or bad but in good faith did something and it was victimization; or that it was employer retaliation to a protected act, if one sought rightly or wrongly but in good faith to assert a statutory right of the kind that one could ask Employment Tribunals determine the details of -e.g. pay statement or unlawful deductions, or, if one mistakenly or not but in good faith and in the public interest informed on the employer a person or body proscribed by law for that purpose in respect of some unlawful practice ~in these cases it does not matter if one has been with the employer for a very short time, one is still entitled to employment protection by complaining to Employment Tribunals -but in these proof is the complainants' (usually Employment Tribunals hold a preliminary hearing to see if the complaint qualifies as an exemption for a full merits hearing -if a full hearing succeeds Employment Tribunals may not award notice pay if that employment was shorter than a month).

Constitution of Employment Tribunals is that Employment Tribunals, normally, each has three members ~a Chairman who is legally qualified and two lay members one acceptable to Unions and the other to Industry -they vary with each case and two might do if one is absent -even if it is its chairperson who has a casting vote (most are full time chairmen ~county or crown court judges may also chair -employed part time).

(Employment Tribunals are courts of record; it is unlawful to subject them or their members or their decisions to criticism, except in legal proceedings to appellate courts local or higher, in any way that is civilly or criminally forbidden under contempt of court laws ~Council on Tribunals may not observe e.g. 'private' Employment Tribunals hearings -Employment Tribunals Service as a public body may be alleged e.g. mal-administration against to Ombudsman (UK, or directly EU).)

>> There is a time limit in Employment Tribunals Rules of Procedure for lodging complaints with Employment Tribunals ~regardless of which of the types above normally it must be received by the Employment Tribunals not later than three months (within 90 days) from the date of employment termination or from when the employee came to know of the employment relations matter complained of ~normally the actual day on which e.g. one was dismissed is not counted for lodging a complaint with Employment Tribunals -the first day is the day that follows it and the last 'day' ends at midnight .

>> Employment law has two additional requirements:-

Before complaining, especially if unfair dismissal or wrongful dismissal -unlawful termination of employment, to Employment Tribunals one must first write to the employer by way of an internal appeal if the complaint is about unlawful termination of employment, or as a claim or enquiry if the complaint is about only e.g. unlawful deduction from pay ~one must allow the employer 28 days to respond -but the time limit to complain to Employment Tribunals (three months) is still as above -not from after then.

Also one must agree to ACAS (Advisory Conciliation and Arbitration Service) first trying to see, especially if wrongful dismissal or unfair dismissal, if there can be a conciliation, if a mutually satisfactory settlement can be reached on employment rights dispute, without a hearing by Employment Tribunals ~Employment Tribunals copy the complaint to ACAS who then contacts one ~complainants are not bound by any settlements with employers, even if signed -unless through ACAS or lawyers can still sue at the Employment Tribunals.

>> Employment legislation involves also some considerations:-

If the complaint to Employment Tribunal is one of wrongful dismissal -the unlawful termination of employment was by way of breach of contact (e.g. without notice or pay in lieu), then also the employer is entitled to argue that about one ~and to the extent that Employment Tribunals find that the employee was also in breach of contract any monies awarded for wrongful dismissal may be reduced -if it is genuinely a fundamental breach (i.e., goes to the heart, the root, of the employment relationship making it impossible).

In a complaint to Employment Tribunals of unfair dismissal -that unlawful termination (as distinct from wrongful dismissal) was in employment longer than one year and not for a reason fair (i.e. such gross incompetence or gross misconduct or taking into account the employers resources 'some other substantial reason' justifying dismissal claimed to be unfair dismissal) or that regardless of the length of employment unlawful termination, unfair dismissal, resulted from a 'protected act' of the employee or under any of the exemptions (as listed above), reinstatement or reengagement is not necessarily ordered if asked for ~if the Employment Tribunals think that trust and confidence considered necessary between the employee and the employer has been irreparably damaged then compensation is awarded -compensation for unfair dismissal may include, especially in e.g. sexual or racial discrimination cases, exceptionally, injury to feelings award of unlimited amount.

In any kind of complaint to Employment Tribunals -not only if there has been unlawful termination of employment by way of wrongful dismissal or unfair dismissal but any kind of workplace dispute relating to the employment relations, while normally there are no costs involved, if the complaint is 'unreasonable' (so totally groundless and 'misconceived' with no reasonable prospect of success -or vexatious or frivolous or scandalous [in the conduct of the proceeding in the circumstances, Block -v- Chapman, 2002, EAT, and, Bennett -v- Southwark Borough Council 2003, CA, if relevant in the context] ~especially if one was warned by Employment Tribunals -subject to Employment Tribunals' duty to hear one), costs may be awarded against one of the other -including fees and expenses of lawyers instructed for that Employment Tribunal.

Also, in any type of complaint to Employment Tribunals, especially if wrongful dismissal (i.e. breach of employment contracts), one is expected to mitigate one's financially measurable losses ~to the extent that Employment Tribunals think that one has not any compensation may be reduced (also when unlawful termination is not wrongful dismissal but unfair dismissal).

Where Employment Tribunals order re-instatement or re-engagement following unfair dismissal, such orders are not enforceable; if the employer refuses to comply compensation is substituted ~any monies ordered by Employment Tribunals to be paid, be it for unfair dismissal or wrongful dismissal (or unlawful deductions or holiday or notice pay or damages or injury to feelings or compensation -any monies) can not be enforced by Employment Tribunals -one must apply to a Country Court for payment enforcement (minus from damages or compensation for unfair dismissal or wrongful dismissal, where applicable, any unemployment pay received).

Employment Tribunals, in unfair dismissal, may not order re-instatement to positions filled ~and employers can not be ordered by Employment Tribunals to give references -but if in retaliation to complaint to Employment Tribunals in exempt cases it is victimization, if is defamatory and one can sue without legal aid it is in Tort slander -if injures, or libel.

Complaint forms are sent by Employment Tribunals upon request in good time and may be lodged by hand with Employment Tribunals or by post -allowing 2 days for receipt by Employment Tribunals, or fax, or internet -contacting Employment Tribunals if in 5 days unacknowledged.

The branch of Employment Tribunals to complain to is the one on Employment Tribunals' list officially local to the employer.

A copy should be kept of the complaint and posting certificate or fax log -for Employment Tribunals in case of non-receipt.

It is better to first make a copy of Employment Tribunals complaint form before filling it in to use to e.g. re-phrase ~most fill it in hand-written -or write in the Particulars (what happened) part 'as attached' enclosing it word-processed.

Employment Tribunals may ask any dates one is not available.

Communications by a party to Employment Tribunals, and by Employment Tribunals to a party, are, as Employment Tribunals policy, copied to the other -by post.

After one lodges with Employment Tribunals a complaint (Originating Application), one may want to add another complaint or to amend it, or may need not readily available witnesses or documents in support of his case -it is better to wait for some three weeks to first receive from the Employment Tribunals a copy of the employer's formal reply (Response); then one may write to the party one wants as witness or for any documents one wants to see (Inspection) or copied one at cost (Disclosure) or to be brought to the hearing (Production) and if refused may apply to the Employment Tribunals to Order them ~precedent suggest that amendments may be allowed if clear from particulars that what was meant is as applied to amend (Kay -v- Swiss Life & Health Insurance 2002 EAT) -a new complaint may be allowed to be added (Ashworth Hospital Authority -v- Liebling 1996 EAT) if it arises from same issue involved in complaint already made.

One may be asked Employment Tribunals (Directions) to list any financially measurable loss claimed -as compensation if unfair dismissal, or as damages if breach of contract -wrongful dismissal ~within normally 2 weeks to inform Employment Tribunals with direct copy employer.

The complainant (Applicant) and the employer (Respondent) are likely to receive Directions from the Employment Tribunals to normally not later than 14 days before the hearing exchange lists of Documents they intend to rely on, and not less than normally 7 days before the hearing to exchange any Witness Statements (their own and anyone else's oral evidence -in written form, to be read out at the hearing); and that both should agree their documents and not have each a different but an Agreed Bundle of Documents (chronologically numbered & Indexed) in 5 identical sets: one each for own use, three for Employment Tribunals ~these are brought to the hearing -but may be sent to Employment Tribunals in advance with Outline Submissions (main points of one's argument) if copied also to the other party.

It is important in one's witness statement to try to address any issues which the employer is likely to argue before the Employment Tribunals and advantageous in the body of one's witness statement itself to refer to one's documents.

When the Notice of Hearing (date when complaint is to be heard by Employment Tribunals) is received, one is given time (usually 14 days) and may ask for the date or time set aside for the hearing to be changed ~Employment Tribunals' 'overriding objective' takes into account what is involved (monies involved may affect this) and one may communicate opinion to Employment Tribunals that the case may take longer in Employment Tribunals estimation due to any complexities -then too may one ask with reason for hearing-date fixed (Listed) to be changed by Employment Tribunals.

One may receive postal offers from law firms who check Listed Employment Tribunals cases to represent one on a 'no win, no fee' basis; one does not have to engage any ~the purpose of Employment Tribunals is to enable un-represented laymen to put their cases without disadvantage -Employment Tribunals must conduct hearings with regard to 'equity'.

At Employment Tribunals hearings rules and procedures and the order of evidence may be varied as Employment Tribunals see fit. If the complaint falls under one of the exemptions the employee normally goes first, otherwise the employer does. Evidence is normally read out from witness statement and members of Employment Tribunals may ask questions, the other party may cross-examine and one may re-examine one's witness ~Employment Tribunals must consider complaints by having regard to the reason or the main reason stated by the employer. Often parties are asked to wait outside as Employment Tribunals deliberate -the decision (Judgment) is not reserved but read out tape-recorded at the end of the hearing by the Employment Tribunal's Chairman.

>> Written Reasons one may have if within 14 days an application is received by Employment Tribunals ~this is important -appeals are not accepted without written reasons.

Review of the decision within 14 days of the hearing may also be asked for ~it can be on the ground that one did not receive a Notice of Hearing, or was absent from the hearing (if had not specifically made written submissions), or it is wrong because of an error of the Employment Tribunals' staff, or there is new relevant evidence of which the existence could not reasonably have been foreseen, or 'interests of justice require it' (e.g. if the decision appears inconsistent with the evidence [although caution advises in allowing this Lindsey -v- Ironside Ray & Vials, 1994, IRLR 318], or if the Statute appears to have been 'read-into' [Haddon -v- Van Der Bergh, 1999, EAT], or if one was not asked about something that is stated as a reason) ~full details must be stated in writing for the Employment Tribunals to consider a Review -any review decisions should be kept.

Notes of Evidence, the only official record of Employment Tribunals' proceedings (not transcribed verbatim and tape-recorders not being allowed), while in appeals parts of considered relevant may be applied for "It may happen on occasion that one or more of the members did not hear any particular sentence or sentences" and if its accuracy is challenged and conflicted (Dexine Rubber -v- Alker 1977 and Keskar -v- Governors of All Saints [etc.] School 1991, EAT) must be accepted of what the evidence and submissions were the Employment Tribunal's Chairman's recollection.

One has 42 days to lodge a Notice of Appeal from Employment Tribunals to the Employment Appeal Tribunal ~regardless of whether one has applied for a review -one may appeal if 'no reasonable employment tribunal could have decided so' or if 'the law was wrongly interpreted or applied' and particularizes it enclosing the Employment Tribunal's (if reviewed, also upon review) written reasons.

Laws change, these are brief guidelines.

The author has a website at: http://www.geocities.com/eoa_uk