Attending tribunals must be accepted as part of the job of an HR
professional despite the fact that some manage to avoid them altogether. In the
three years leading to 2001, employment tribunal applications increased by 60
per cent to more than 130,000 and the CBI estimates that the cost to business
is £663m annually.
Many employers choose to settle because they don’t like the idea of airing
any dirty laundry in public or being cross-examined – figures from the
Engineering Employers’ Federation (EEF) show that in 2001 more than
three-quarters of all claims were settled or withdrawn before reaching a
Many employees who go to tribunals have undoubtedly been unfairly treated,
but increased employment legislation and our growing compensation culture mean
that more are willing to try it on. In these cases, if you have the right
employment policies in force and know the employee concerned was treated
fairly, you have more to gain by attending than by settling.
What format will the tribunal take?
Tribunals are less formal than courts, but it is important to remember that
technically it is still a court. The basis on which they stand eschews the
formal setting of other so as not to alienate or intimidate the employee
The employee is referred to as ‘the applicant’ while the employer is ‘the
respondent’. There will normally be three officials present in addition to the
parties involved – a chairperson and two ‘wing members’. The chairperson, who
is technically appointed by the Lord Chancellor, will be a barrister or
solicitor with at least seven years’ experience.
The wing members are nominated by panels from each side of the industry,
from shopfloor and management, and often from the CBI and the TUC. These wing
members need no legal qualifications, but can outvote the chairperson. However,
they are not there to support their ‘side’, but rather to provide practical
expertise and experience of the workplace.
What happens on the day?
Both parties are asked to give evidence and who goes first depends on the
type of case brought. Where there is more than one complaint, the chairman may
seek the views of the parties to determine how the hearing proceeds.
After witnesses give evidence, they can be cross-examined by the opposing
side and quizzed by the tribunal. After evidence has been heard, both sides are
invited to make final submissions, drawing together key facts and legal issues.
The tribunal will always send a written decision explaining the reasons.
How do I prepare?
There is no shortcut to preparing for a tribunal and some HR professionals
have cited as much as two weeks to fully put their case together. It is up to
HR to initiate and gather all documentation needed from witness statements to
prove that the correct company policies and procedures have been followed.
Organisations involved in a tribunal receive an IT1 form and must prepare a
response to it (known as an IT3 form) within 21 days. Race and sex
discrimination claims can be among the most difficult when it comes to filling
in the questionnaire because detailed information on people polices and
practices may be requested. The HR professional must ensure that every detail
has been extracted from line managers or relevant colleagues, since a case
could stand or fall by a missing piece of detail.
HR professionals are increasingly engaging the services of a solicitor or an
HR advisory firm, which also handles advocacy work (and are generally cheaper
than lawyers), to relieve them of the legwork and much of the pressure on the
day. It should be noted, however, that their role will be to help you to win
the case rather than to win it for you. Obviously this adds considerably to
costs and a decision to use these services should be based on the demands of
the specific case.
Can I avoid the tribunal?
The ideal situation would be not to be placed in the position of having to
prepare for a tribunal in the first place. With best practices in force, you
have the basis for avoiding and minimising their incidence and beyond careful
recruitment here are some fundamentals to bear in mind:
– Make sure company handbook is up-to-date so the employee knows where they
stand on all aspects of company policy. Placing this on the company intranet in
an easily updateable form is a good policy
– Have strong disciplinary and grievance procedures in place
– Ensure all managers receive good training – incidents frequently occur
when an untrained manager departs from procedures or when an individual is
promoted into a position beyond their capabilities
Where can I get more info?
The Employment Tribunals Service’s own site includes advice on what to do if
taken to an employment tribunal and its corporate plan for the next five years.
The arbitration service is good for news and general information.
The employment relations section is useful for legislation and amendments to
Employment Tribunals, Legal Essentials, Hammond Suddards Edge/CIPD
If you only do five things
1 Brush up on your own employment law
2 Make sure your line managers are up to speed on employment law
3 Make sure best practices are in place
4 Check the company handbook is up to date
5 Attend an employment tribunals course