The employment tribunal system

Most employment claims are heard by employment tribunals, although some cases must be brought in the ordinary civil courts (the County Court or High Court). These are principally, all breach of contract claims where the employment contract is ongoing, and applications for injunctions. This is explained in more detail in Chapter 3: Contracts — Other remedies.

In the past, it has nearly always been better to bring wage and other contract claims in the employment tribunal as an unlawful deduction of wages than to use the civil courts. However, since the introduction of employment tribunal fees (see page 28) this may not always be the case, particularly for small wage claims. This is because the fees charged by the small claims court are significantly lower than employment tribunal fees, and are calculated on a sliding scale based on the size of the debt claimed. You can find out more on the GOV.UK website: Make a court claim for money (https://www.gov.uk/make-court-claim-for-money/overview).

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, although they have become increasingly legalistic.

Employment tribunals have their own rules of procedure. New rules have been published, the Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013. The new rules aim to simplify the tribunal process and to introduce greater consistency across the different regional tribunals, but they must also be viewed against the backdrop of the government’s drive to reduce the number of tribunal cases.

In April 2011, the Employment Tribunal Service merged with HM Court Service to become part of the Ministry of Justice HM Courts and Tribunals Service. Government information about bringing a tribunal claim is now found on the Ministry of Justice website at: www.justice.gov.uk/tribunals/employment.

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.

Some tribunal claims are heard by an employment judge sitting alone. These include claims for unpaid wages, holiday, redundancy payments, interim relief and, since April 2012, 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 all the parties agree.

A judge has the discretion to order that an unfair dismissal claim be heard by a full panel of members but in practice, full panel hearings are increasingly rare. This loss of experienced lay panel members in unfair dismissal claims is generally seen as a step in the wrong direction, moving away from the tribunal’s role as industrial jury. For a good example, see McCafferty v Royal Mail Group Limited [2012] UKEAT 0002/12/1206.

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.

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.

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). A contract claim in an employment tribunal is subject to a cap of £25,000.

An employer wanting to litigate against their employee, or ex-employee — for example to enforce a restrictive covenant (see page 90) — must bring their claim in a civil court not an employment tribunal. The only time an employer can claim in the employment tribunal is if their employee has already claimed breach of contract in the employment tribunal. In these circumstances, the employer is allowed to counter-claim for breach of contract in the employee’s employment tribunal proceedings.