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DISMISSAL - FAIR AND UNFAIR : A GUIDE FOR EMPLOYERS
PL714 (REV 11)
What happens
if the complaint reaches a tribunal?
What
sort of body is an employment tribunal?
Each tribunal
normally consists of a chairman who is a lawyer and two other
members, one from a panel of members representing employers, and
the other from a panel of members representing employees. In certain
circumstances however it may consist of a chairman sitting alone
or with just one lay member. Tribunals hold most of the hearings
in their own offices, which are situated in the larger towns and
cities.
What
is a preliminary hearing?
This may be
arranged, before the substantive case is heard, to enable a tribunal
to determine any issue relating to the entitlement of any party
to bring or contest proceedings to which the originating application
applies. Any of the parties may apply for such a hearing, or it
may be convened at the decision of the tribunal, but notice must
be given to all parties in writing and an opportunity given to
advance oral argument before the tribunal.
What
is a pre-hearing review?
A full tribunal,
or a chairman sitting alone may conduct a pre-hearing review of
a case in advance of the full tribunal hearing. If it appears
that the case has little prospect of success either party may
be ordered to pay a deposit of up to £500 as a condition
of continuing to proceed with, or defend the case.
What
happens at the hearing?
If the complaint
is not settled or withdrawn at an earlier stage, it proceeds to
a full hearing by an employment tribunal. At the hearing, tribunals
try to keep their proceedings as simple and informal as possible.
Many applicants and respondents put their own cases to the tribunal
although some choose to have a representative who may be a lawyer,
trade union official, representative of an employers' organisation,
or simply a friend or colleague.
The tribunal
clerk explains the procedure to the parties before the case begins
and the chairman will assist both parties in putting their case
as the hearing proceeds. The tribunal will normally give both
parties the opportunity to present their respective cases and
question their own and the other party's witnesses. The tribunal
panel may ask questions of the parties or their witnesses. It
is in the interest of both applicant and respondent to attend
the hearing. If one party is neither present nor represented,
the tribunal may decide the case in their absence, after considering
any written representations made. In some cases a tribunal finds
it very difficult to reach a decision if a party does not attend
and may adjourn the case. A tribunal may dismiss an application
if the applicant fails to attend without explanation.
Tribunal hearings
are generally completed in one day. Decisions may be by majority
vote, but in fact nearly all are unanimous. The tribunal usually
announces its decision and the reasons for it straight away. A
written decision is also sent to the parties, generally within
three to six weeks. Both parties have a right to ask for a review
of the decision and a right to appeal against the tribunal's decision,
on a question of law, to the Employment Appeal Tribunal. Information
on how to apply for a review of the decision, and how to appeal,
is sent to the parties with the tribunal decision.
Is
any financial assistance available for tribunal hearings?
Legal aid
is not available at employment tribunals, but some employees may
be able to claim a limited amount of free advice under the legal
advice and assistance scheme. This does not cover the cost of
a legal representative at the hearing .6
Allowances
are available from the tribunal office to cover the cost of travel
to a hearing and other expenses both to the applicant and respondent,
to the witnesses called and to representatives, including members
of Citizens Advice Bureaux, but not full-time officials of employers'
organisations or trade unions, barristers or solicitors or any
other paid or unpaid professional person or organisation or organisations
who represent parties as opposed to acting as their witnesses.
Loss of earnings may also be paid up to a maximum. The tribunal
can provide details of the current rate on the day of a hearing.
What remedies may the tribunal order?
If the tribunal
finds that the dismissal was fair, it will dismiss the application.
If it finds the dismissal unfair, the tribunal will normally order
that:
Orders for
reinstatement or re-engagement normally include an award of compensation
for loss of earnings.
Do
employment tribunals make awards of costs?
Costs (expenses
in Scotland) are not normally awarded in employment tribunal cases.
They can be, however, if the tribunal decides that a party has
acted frivolously, vexatiously, abusively, disruptively or otherwise
unreasonably in bringing or conducting the case. Costs of an adjournment
or postponement may also be awarded when the adjournment or postponement
was requested at the last minute by either party with no good
reason or where it is necessary because a party has not come prepared
to deal with issues which may be expected to arise at the hearing.
What
is the Acas arbitration alternative to the tribunal?
Acas has been
given the power to provide an arbitration scheme for unfair dismissal
disputes. This scheme started on the 21 May 2001 and is a
voluntary alternative to the tribunals. Separate guidance can be
obtained from Acas.
6
A leaflet about this scheme is available from Jobcentre Plus offices. The Citizens Advice Bureaux also have information on
the scheme. 
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