Law guide: Employment

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Steps before the hearing

Steps before the hearing

Contents

Role of Advisory Conciliation and Arbitration Service and the Labour Relations Agency (in Northern Ireland)

Acas

The Advisory Conciliation and Arbitration Service (Acas) is an independent body that has a legal duty to offer a free voluntary conciliation service when a complaint has been made to an Employment Tribunal (ET).

Acas runs a scheme called 'Early Conciliation'. This is a free service designed to resolve workplace disputes. If you have a problem with your employee that you can't resolve and the employee is considering lodging the claim at an Employment Tribunal, Acas must first offer the scheme.

For more details see the section 'Before making a claim' under Employment Tribunal. You can also see the Acas website for more information.

LRA

The Labour Relations Agency (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 that 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.

When the employee lodges a claim

England, Wales and Scotland

Before starting a claim, the employee will need an 'Early Conciliation' certificate from Acas.

See the section 'Before making a claim' under Employment Tribunal for more information.

Then, once an Employment Tribunal receives the claim and response, an employment judge will initially review them. If the claim or response (or any part of them) is unlikely to succeed, the judge will delete it, or 'strike it out'. The judge will also strike out a claim or response that falls outside the tribunal's jurisdiction.

If the employment judge decides that the case should continue, the tribunal will send the parties instructions for preparing the case for a trial (case management directions).

Northern Ireland

An employee will lodge a claim using an ET1 form. In most cases, the tribunal will then send a copy of the form to the LRA, which will try to encourage settling the matter.

If the claim is not settled using the LRA, the claim will continue.

Tribunal claims usually go straight to the Case Management Hearing; although in certain cases, pre-hearing review may be required beforehand to clarify or review certain aspects of the case.

Preliminary hearings

Northern Ireland

Pre-hearing review

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 Tribunal then their case (or response) may be struck out. Either party may apply for a pre-hearing review. The 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. Witnesses may be called to be heard at pre-hearing review.

If the Tribunal considers that either the employer or employee has little reasonable prospect of success, it can order that a deposit be paid. 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 of the other party.

Case management hearing

These are heard by the chairman alone and are held to identify the issues in the case and to consider procedural aspects, such as whether expert evidence is needed and the date that each party should exchange ('disclose') relevant documents. They can be conducted by telephone conference call. No evidence is given.

The chairman can make orders on the following:

  • What information needs to be shared
  • The length and dates of any subsequent hearing
  • Directions to be given to the parties

Either the employer or employee may require:

  • Further particulars to be given on an issue
  • The disclosure of documents or other relevant evidence
  • Written answers to specific questions or the attendance of certain witnesses

The Tribunal may then make an appropriate order for either the employer or employee to furnish the requisite information. Failure to comply with the order could result in the striking out of the notice of claim or the response by the employer as the case may be.

Where a party wishes that a particular witness attend the proceedings, the Tribunal has the power to order the attendance of a witness. The 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 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 Tribunal is sensitive to the problems of disclosing the identity of the individuals involved. In such cases, therefore, the Tribunal may make a 'restricted reporting order', which will prevent publication of the name of the person affected by the allegation.

England, Wales and Scotland

The parties can request an ET to hold a preliminary hearing to discuss all of the above-mentioned issues (except the case directions, which would have already been dealt with). This is a formal hearing that is attended by an employment judge. Written or oral representations can be made and can include witness statements.

If the ET 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. The ET can make a deposit order for a specific part of a claim or response (rather than the whole of it). 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.

Preparation for the hearing

Once the ET 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. The employer, the employee and every member of the ET should each have their own copy of the bundle. One copy is also needed for the witnesses.