An introduction to employment tribunals

February 11, 2009

Few people, whether employees or representatives of an employer, will look forward to giving evidence at an employment tribunal. Although the tribunal system has been in existence since the 1960s (when they were originally called industrial tribunals), many people are still unclear about the format of tribunals and how their rules differ from those of the courts. With the number of employment tribunal claims rising year on year, anyone who is likely to be involved in tribunal proceedings will wish to be familiar with the tribunal system and rules so that they can approach the process with confidence. This article highlights just a few of the key features of tribunals and how their role has evolved since their inception.

What are employment tribunals?

An employment tribunal is a forum for determining disputes between employers and employees that arise from the employment relationship. As with any other civil court, their judgments are binding upon the parties and can be appealed to the Employment Appeal Tribunal upon points of law (with further appeals to the Court of Appeal and the House of Lords). Tribunals must act independently, follow their own rules of procedure and, since 2001, act in accordance with the “overriding objective”, which is to enable tribunals “to deal with cases justly”. In particular, this means ensuring that the parties are on an equal footing, dealing with cases proportionately, dealing with cases expeditiously and fairly, and saving expense.

Who sits on an employment tribunal panel?

One of the major differences to a court is that a full employment tribunal consists of three members: an employment judge who is legally qualified and two wing members. One wing member must come from an employer background and the other from a trade union background. The wing members are designed to bring practical employment experience to the tribunal’s decision. Most people are surprised to find that no wigs or gowns are worn in the tribunal. Like courts, tribunal hearings usually sit in public.

What about costs?

In general, costs are awarded less frequently in employment tribunals than in the civil courts, and this reflects the narrower range of circumstances under which tribunals are permitted to order costs against the parties. There are different types of costs orders available to the tribunals, but in general terms, costs will typically be awarded against a party only where that party has acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing or conducting the proceedings or that the bringing or conducting of the proceedings has been misconceived.

The changing face of tribunals

When they were first established in 1964, the intention was that employment tribunals would be a cheap and accessible forum within which non-legally qualified individuals could present their cases, in a relatively informal setting. However, over the years, as employment legislation and case law has expanded and become more complex, particularly with the proliferation of European employment law, the scope of the disputes that the tribunals are asked to consider has widened considerably. This has meant that typical tribunal proceedings now often involve the consideration of technical legal argument, which lay advocates may not have the legal knowledge or experience to deal with. This, in turn, has resulted in the tribunal being populated by solicitors and barristers, and the preparation for and conduct of hearings becoming substantially more labour intensive. To this extent, the modern employment tribunal is now far removed from the original model of a lay forum for resolving disputes.

In addition, as a result of the greater complexity and length of cases, employment tribunals now have to deal with a much greater caseload than the early industrial tribunals. The Government has attempted to alleviate this additional strain on the tribunal system in recent years – for example, by seeking to encourage employers and employees to resolve disputes in the workplace through the introduction of the statutory dispute-resolution procedures. However, as employment law continues to develop and the range of claims available to employees increases, it is unlikely that the burden on tribunals will significantly reduce in the foreseeable future.

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