The employment tribunal system

The Employment Tribunal Service is part of the Ministry of Justice HM Courts and Tribunals Service. Most employment claims are heard by employment tribunals, although some cases must be brought in the ordinary civil courts (the Small Claims Court, the County Court or the High Court). The main kinds of claim that workers must bring in the civil courts rather than the employment tribunal are:

• all breach of contract claims where the employment contract is ongoing;

• applications for injunctions; and

• claims for compensation for personal injury (although a claim can be brought in the employment tribunal where the injury was caused by unlawful discrimination or harassment — see Chapter 6).

Employment tribunals (industrial tribunals in Northern Ireland) were originally set up under the Industrial Training Act 1964 as an informal, accessible, quick and inexpensive way of resolving employment disputes, and a means of reducing the number of strikes. The introduction of tribunals represented a deliberate policy shift away from resolving workplace disputes through collective industrial action and towards an approach based on individual legal rights.

An employment tribunal’s jurisdiction is based on statute. Without a legal statute giving the tribunal the power to deal with a particular issue, it is not allowed to consider it.

An employment tribunal can also hear some claims by employees for breach of the employment contract, but only if the breach arises or is outstanding on dismissal (see Chapter 3). Compensation for a successful contract claim brought in the employment tribunal is capped at a maximum of £25,000. There is no cap where a claim is brought in the civil courts. There is a general legal principle that if you bring a claim in one court, you cannot then take the same claim to another.

Employment tribunals are for claims by workers against their employer, not for claims by employers against workers. Employers must bring their claims in the civil courts. The only time an employer can claim in the employment tribunal is where their employee has already issued an employment tribunal claim for breach of contract. In these circumstances, the employer may be able to issue a counter-claim in the same proceedings for breach of contract (damages) (see page 82).

Employment tribunals have their own rules of procedure. New rules — the Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013 — have attempted to simplify some aspects of the tribunal process and to introduce greater consistency across different regional tribunals. Tribunals have also come under increased government pressure to reduce the number of tribunal cases and to cut costs.

A full tribunal consists of a legally qualified chairperson (called an employment judge) and two lay members, one drawn from a panel of employer representatives and one from a panel of employee representatives. Many tribunal claims are now heard by an employment judge sitting alone instead of a full tribunal. These include all claims for unpaid wages, holiday, redundancy payments, interim relief and since April 2012, all claims for unfair dismissal and appeals to the Employment Appeal Tribunal (EAT). In some other jurisdictions, a case can be heard by a judge alone if the parties agree.

An employment judge has the discretion to order that a claim be heard by a full panel of members although full panel hearings are increasingly rare. This loss of experienced lay members, especially in unfair dismissal claims, is generally viewed as a retrograde step, moving ever further away from the tribunal’s original role as industrial jury.

Employment tribunals hear a wide range of claims, including claims for unfair dismissal, unlawful deduction from wages, redundancy pay, discrimination, equal pay, claims relating to parental rights, working time claims, claims based on unlawful blacklisting and most trade union rights.

The introduction of tribunal fees in July 2013 resulted in a dramatic 79% collapse in the number of tribunal claims. A TUC report examining what lies behind the steep decline — What price justice? — has confirmed that women and the low paid are the biggest losers from the tribunal fee regime.

In May 2014, it became mandatory to initiate Acas Early Conciliation in all claims by submitting an Acas Early Conciliation Notification Form. If the new procedure is not complied with the claim cannot be heard. The only exception is a claim for interim relief. Information on the mechanics of the tribunal fee regime, as well as information on accessing Acas EC and making a tribunal claim is found in Chapter 13.