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ACAS is an independent body which has a legal duty to offer a free voluntary conciliation service when a complaint has been made to an Employment Tribunal.
Since 6 April 2009 ACAS has offered employers a free 'pre-claim' conciliation service for problems with employees that have not been resolved and are likely to result in a complaint being lodged at an Employment Tribunal but this is yet to be done. For further details see the ACAS website.
The LRA was established in 1976 as a non-departmental public body with the responsibility for promoting the improvement of employment relations in Northern Ireland. It is an independent body which provides an impartial and confidential employment relations service to those engaged in industry, commerce and public services. Amongst its many functions, the LRA is very active in resolving disputes through its conciliation, mediation and arbitration services.
If the employee lodges a claim then on receipt of the employee's ET1 form, the Employment Tribunal will, in most cases, send a copy to ACAS or the LRA, as applicable. The ACAS (or LRA) conciliation officer will have a duty to try and promote a settlement of the matter. After your employee has presented his or her claim to the Employment Tribunal, it is the duty of the secretary of the Employment Tribunal to send copies of all the documents to the appropriate conciliation officer so that he or she can carry out these duties.
Either the employer or employee may request the conciliation officer to intervene or the conciliation officer may intervene on his or her own initiative. However, the services of an ACAS (or LRA) conciliation officer may only be available for a limited period of time. Usually, the Employment Tribunal will write to the parties to advise them of any time limits.
A substantial number of complaints are settled before reaching an Employment Tribunal hearing using ACAS or the LRA.
Employment Tribunal claims usually go straight to the hearing stage of the process, although in certain cases, at least one meeting may be needed beforehand to clarify issues or review certain aspects of the case.
A pre-hearing review is usually held to decide preliminary issues in a dispute, but it can sometimes be used to decide actual aspects of the case or even dispose of it altogether. For instance, if it appears that either the employer or the employee's case is extremely weak and without merit, is vexatious, has not been actively pursued or where a party has failed to comply with a direction of the Employment Tribunal then their case (or response) may be struck out. Either party may apply for a pre-hearing review. The Employment Tribunal may itself decide that a pre-hearing review should take place.
The pre-hearing review is a formal hearing and written or oral representations can be made. This includes the use of witness statements, except in Scotland where witness statements are not usually used. Witnesses may be called to be heard at pre-hearing review.
If the Employment Tribunal considers that either the employer or employee has little reasonable prospect of success, it can order that a deposit of up to £1,000 be paid and should either party persist with their claim and lose, the deposit may well be lost and the paying party may risk facing an order to pay the costs (or in Scotland, expenses) of the other party.
These are heard by an employment judge (or chairman in Northern Ireland) alone and are held to identify the issues to be determined in the case and to consider procedural aspects. They may be conducted by telephone conference call. No evidence is given.
The employment judge or chairman may make orders, including on:
It may be necessary in more complex matters for the tribunal to make certain directions. This is normally done at a case management discussion hearing.
Either the employer or employee may require:
Where a party wishes that a particular witness attend the proceedings, the Employment Tribunal has the power to order the attendance of a witness. The Employment Tribunal must be satisfied that the witnesses' evidence is relevant and that it is necessary to issue a witness order or secure their attendance.
The witness who is ordered to attend the hearing will not be entitled to reclaim their expenses from the Employment Tribunal. Instead the expenses will need to be paid by the party relying on their evidence, although this may be recoverable if the party successfully obtains an order for their costs against their opponent.
In the case of sexual misconduct, the Employment Tribunal is sensitive to the problems of disclosing the identity of the individuals involved. In such cases, therefore, the Employment Tribunal may make a 'restricted reporting order', which will prevent publication of the name of the person affected by the allegation.
Once the Employment Tribunal has allocated a date, time and place for the hearing, the employee and employer will be notified in writing of the date. Once the date has been fixed, the witnesses must be made available and both sides should try to agree upon and prepare a single bundle of documents for use at the hearing. The bundle of documents should include all correspondence and other documents on which the employer or employee intend to rely. They are arranged in correct sequence and numbered consecutively. At least six copies of the documents should be available at the hearing, one for each member of the Employment Tribunal, one for the employer and the employee and one for use of the witnesses.
