Managing disputes: 10 steps to tribunal success

Section 7 of the Personnel Today Management Resources one stop guide on managing disputes. Other sections.

1. Consider applying for a pre-hearing review

The Government has been making changes to employment tribunal procedures for several years in an attempt to reduce the chances of weak cases getting to the hearing stage.

  • In 2001, it introduced the wider use of pre-hearing reviews to weed out cases with little chance of success. These are generally used by the respondent to argue an applicant's claim should be struck out.

  • If the tribunal decides from reviewing the case that there is little reasonable prospect of success, it can demand a deposit from the applicant of up to £500.
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  • Costs can also be awarded up to £10,000 against any party if the tribunal believes it was unreasonable in persisting with the claim or if it acted vexatiously, abusively, disruptively or otherwise unreasonably in the course of proceedings. Any deposit is then set off against the award of costs.
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  • Under reforms due to come into force in October 2004, there will be new pre-acceptance procedures to sift out claims and responses that should not go forward.
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  • Explicit provision is to be made for cases to be struck out at the pre-hearing review for grounds including failing to comply with an order or direction, or the inclusion in the claim or response form of anything scandalous, unreasonable or vexatious or conducting the proceedings in such a manner.
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  • There will also be changes to the costs rules. In some circumstances tribunals will be able to award costs for preparation time, and tribunals will be able to award costs directly against a party's representative for the way they conduct the proceedings.
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  • Standard claim and response forms are to be introduced from April 2005. These will seek fuller information up-front to assist the parties and tribunals in understanding and assessing the merits of cases at an earlier stage.
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  • The president of the Employment Tribunals will have the power to issue practice directions to encourage consistency of case management across all regions.
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  • Employees will be barred from bringing claims unless they have followed the statutory grievance procedures (see Section 3 ).

    • 2. Respond promptly to the IT1

    The notice of appearance (IT3) setting out your response to the claim must be returned within 21 days of receipt of 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 which will be considered by the chair who may grant an extension, but 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 comply might result in the claim being struck out.

    4. Disclose all relevant documents

    The parties will be asked to produce and serve to the tribunal 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. The parties are then allowed to inspect any of the documents listed by the other unless they are privileged. Documents means not just paper documents but any evidence or information such as emails, videotape, photographs, etc.

    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. However, you are not required to create documents, eg, statistical evidence.

    5. Consider if documents are privileged

    Privileged documents are those covered by legal professional privilege, eg, communications between solicitor and client, litigation privilege or those made 'without prejudice' - such as with the intention of reaching a possible settlement. 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 witness 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, otherwise, the parties agree a date between themselves.

    7. Ask the tribunal 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 witness with relevant knowledge will not attend voluntarily. Witnesses should be informed of the hearing details, be given a copy of the statement in advance and copies of any documents referred to, and be told what will happen at the tribunal, eg, cross examination.

    8. Brief expert witnesses

    Often in discrimination or equal pay cases, expert witnesses are called to give a written statement and to be subjected to cross examination. Where possible, the tribunal will prefer both parties to use the same expert and if this is not possible, may encourage the expert witnesses to meet prior to the hearing to try to resolve any differences of opinion. Send the expert witness a letter specifying any particular questions and general subjects they are likely to have to address.

    9. Consider asking for orders for questions

    The tribunal can order either party 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.

    A compromise agreement must comply with certain criteria:

  • The agreement must be in writing
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  • It must relate to the particular complaint
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  • The complainant must be given advice by a relevant adviser (eg, a solicitor, trade union official, or advice volunteer) as to the terms and effect of the agreement on their ability to pursue rights through a tribunal
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  • The adviser is insured or indemnified by a professional body for any loss to the applicant arising as a consequence of reliance on the advice
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  • The agreement must identify the adviser
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  • The agreement must say the above conditions have been satisfied.
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    References and resources

    Legislation

    Employment Tribunals Act 1996 - www.hmso.gov.uk

    Employment tribunals (Constitution and Rules of Procedure) regulations 2001 - www.hmso.gov.uk

    Consultation on rule changes

    Consultation document on the draft revised employment tribunal regulations and rules of procedure - www.dti.gov.uk/er

    Consultation document on Proposed Revised EAT Rules of Procedure - www.dti.gov.uk/er

    Consultation document on proposed new employment tribunal claim and response forms (ET1s and ET3s) - www.dti.gov.uk/er

    Documents

    Handling employment tribunal claims: disclosure witness evidence and settlement - XpertHR topic of the week

    Tribunal procedures and other methods of resolution - XpertHR employment law reference manual

    Books

    Tolleys Employment Tribunal Handbook - Practice, Procedures and Strategies for Success - www.butterworths.co.uk

    Websites

    Employment tribunal service website - www.employmenttribunals.gov.uk

    Acas- www.acas.gov.uk

    DTI - www.dti.gov.uk/er


    One stop guide to managing disputes: other sections

    Section 1: Introduction
    Section 2: What the law says
    Section 3: The procedures in detail
    Section 4: Best practice
    Section 5: Avoiding problems with dismissal
    Section 6: Alternative dispute resolution
    Section 7: 10 steps to tribunal success
    Section 8: Case studies
    Section 9: Glossary
    Section 10: Resources