CONTRACTS
OF EMPLOYMENT (PL810 Rev 6)
(continued)
Making a complaint to an employment tribunal
Individuals
who wish to complain to an employment tribunal may obtain a copy
of the explanatory booklet
Making a claim to an Employment Tribunal, which contains the application form
ET1 or, in
Scotland, ET 1 (Scot) - and is available from
Jobcentre Plus offices, Citizens Advice Bureaux,
from the DTI Publications Orderline on 0870 1502 500, or from the
Employment Tribunals Service web site.
You should raise your complaint in writing with your employer and
wait 28 days before presenting your completed form to the
appropriate employment tribunal office as explained in the
booklet.
Conciliation
The
legislation makes provision for employment tribunal complaints (or
potential complaints) to be resolved, if the parties wish it,
through conciliation.
Either party
to a dispute of this kind may seek the services of a conciliator
of
the Advisory, Conciliation and
Arbitration Service (Acas). Once an employment tribunal
complaint is made, Acas is automatically informed
and a
conciliator assigned to the case.
The
conciliator's job is to promote a settlement of the complaint (or
potential complaint).
Contracting
out of rights
In the case
of most complaints to an employment tribunal, including a
complaint about an unlawful deduction from wages or an unlawful
payment, an agreement not to present or to continue with the
complaint is not binding. However, it is binding if:
- it has
been reached with the assistance of an ACAS conciliator, as
described above; or
- it is a
'compromise agreement' satisfying the requirements of the
legislation.
In order for
a 'compromise agreement' to be binding, the following conditions
must be met:
- the
individual must have received independent advice from a
relevant independent adviser:
- (1) a
qualified lawyer (a solicitor who holds a practising
certificate, or a barrister (in Scotland, an advocate) who
is in practice as such or is employed to give legal
advice, or (in England and Wales) a person who is an
authorised advocate or litigator within the meaning of the
Courts and Legal Services Act 1990; or
- (2)
an official, officer, employee or member of an independent
trade union certified and authorised by the trade union to
give advice; or
- (3)
an employer, officer or volunteer of an advice centre
certified and authorised by the centre to give advice; or
- (4) a
person of a description specified in an order by the
Secretary of State;
- the
advice must be covered by a contract of insurance or an
indemnity provided for members of a profession or professional
body covering the risk of a claim against the adviser, in
respect of the advice given;
- the
advice must relate to the terms and effect of the proposed
agreement and in particular to its effect on the individual's
ability to pursue his or her rights before an employment
tribunal;
- the
agreement must be in writing, identify the legal adviser and
state that the conditions regulating compromise agreements are
satisfied.
A worker
may, however, enter into a binding contractual agreement with an
employer forgoing his or her right to make a breach of contract
claim to a civil court or to an employment tribunal, even where
that agreement has been reached without the assistance of an Acas
conciliator and is not a 'compromise agreement'.
Pre-Hearing
Review
An
employment tribunal chairman, or in some cases a chairman sitting
with lay members, may conduct a Pre-Hearing Review of a case in
advance of the full hearing. If the tribunal considers that either
party's case has little prospect of success, it may order that
party to pay a deposit of up to £500
as a condition of continuing to proceed with, or to defend, the
case.
The
employment tribunal hearing
If a
settlement is not reached and the claim is not withdrawn, the
employee's claim will proceed to a full Hearing by an
employment tribunal. Tribunals hold most of their hearings in
their own offices in the larger towns and cities. In cases
involving allegations of a breach of contract or an unlawful
deduction from wages, each tribunal normally consists of a legally
qualified chairman sitting alone. In certain circumstances,
however, the chairman may sit with one or two lay members. The
Hearing is conducted in a simple and straightforward manner, in
such a way that the parties may put their own cases without the
need to incur the cost of legal representation. Either party may
however get a lawyer, a friend, a trade union official or some
other representative to act on their behalf if they wish.
The employment tribunal judgment
Where an
employment tribunal finds that a breach of contract has occurred,
it will order the party responsible for the breach to pay to the
other party a sum of damages calculated in the same way as it
would have been had the case been heard in the civil courts
(subject to the statutory upper limit).
Where an
employment tribunal finds that there has been an unlawful
deduction from wages or an unlawful payment received by the
employer, it will order the employer to pay to the worker the
amount of the deduction made or payment received. It will however
take into account and offset any payment or repayment already made
by the employer. This enables an employer to sort out a genuine
mistake by repaying the full amount in dispute before the
employment tribunal hearing.
Any party
who is dissatisfied with an employment tribunal's judgment may
apply for a review of that judgment or, if the dissatisfaction
concerns a point of law rather than one of fact, may appeal to the
Employment Appeal Tribunal.
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