The
HR manager’s worst nightmare is ending up at an employment tribunal. Heather
Falconer shares 10 steps to surviving the experience
1
Consider applying for a pre-hearing review
In
2001, the Government introduced the wider use of pre-hearing reviews to weed
out cases with little chance of success. If the tribunal decides that success
is highly unlikely, it can demand a deposit from the applicant of up to £500.
Costs can also be awarded up to £10,000 if the tribunal believes a party was
unreasonable in persisting with the claim, or if it acted vexatiously,
abusively, disruptively or otherwise unreasonably in the course of proceedings.
Employees will be barred from bringing claims unless they have followed the
statutory grievance procedures due to be introduced in October this year.
2
Respond promptly to the originating application
The
notice of appearance (IT3) setting out your response to the claim must be
returned within 21 days of receiving the originating application (IT1) and you
may need to get legal advice first. Failure to do this may mean you can take no
further part in the proceedings. If you do submit it late, give an explanation
for the delay. It will be considered by the chairperson, who may grant an
extension, but they can order you to pay costs.
3
Get as much information about the case as you can
You
can apply to the tribunal to order the applicant to provide further and better
particulars of grounds, contentions or facts relevant to the claim. This will
give you a better idea of the case you will face. Failure to com-ply might
result in the claim being struck out.
4
Disclose all relevant documents to the case
The
parties will be asked to produce a list of documents relevant to the case in
their control or possession, or those they had a right to take possession of,
inspect or take copies of, and serve to the tribunal. The parties are then
allowed to inspect any of the documents listed by the other party unless they
are privileged. The term ‘document’ not only means paper documents, but also
any evidence or information, including e-mails, videos and photographs. Though
there is no general duty to make a disclosure, a tribunal is likely to order it
where a prior request by correspondence has been refused or ignored. Failure to
disclose relevant documents may also cause a tribunal to order costs against
you. All relevant documents should be disclosed even if they are damaging to
your case.
5
Consider whether documents are privileged
Privileged
documents are covered by legal professional privilege, such as communications
between solicitor and client, litigation privilege or those made ‘without
prejudice’. To be privileged, the document must be genuinely aimed at achieving
a settlement. It is not sufficient to mark it ‘privileged’ or ‘confidential’.
6
Prepare statements for all key witnesses as early as possible
Witness
statements are normally exchanged in advance, and then parties will be examined
and cross-examined on them at the hearing. The exchange of witness evidence
normally happens after the disclosure of documents. Sometimes the tribunal
orders it by a certain date, but otherwise, the parties agree on a date between
themselves.
7
Ask for a witness order if necessary to secure attendance of key witnesses
The
tribunal may make an order for a witness to attend the hearing if a party
believes a wit-ness with relevant knowledge will not attend voluntarily.
Witnesses should be informed of the hearing details, given a copy of the statement
and any documents referred to in advance, and should be told what will happen
at the tribunal, such as cross-examination.
8
Brief expert witnesses
Expert
witnesses can be called on to give a written statement and be subjected to
cross-examination. Where possible, the tribunal will prefer both parties to use
the same expert. If not, they may encourage the expert witnesses to meet before
the hearing to try and resolve any differences of opinion. Send the witness a
letter identifying particular questions and general subjects they may have to
address.
9
Consider asking for orders for questions
Either
party can be ordered to answer questions in writing before the hearing if it
thinks this may clarify any relevant issues in advance.
10
Consider settling to avoid further costs, bad publicity or damage to morale
The
parties can agree to stop tribunal proceedings at any time by signing a
settlement agreement either involving Acas (a COT3) or between themselves (a
compromise agreement). This binds them legally so the employee cannot present
the same complaint to a tribunal again.
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