Employment tribunals (industrial tribunals as they were then called) were first set up in 1964. They initially dealt only with a tiny range of issues but their remit has been expanded over the years so that now there are literally dozens of types of claim that can be brought there, ranging from unfair dismissal to discrimination, unpaid wages to whistleblowing.
Do employment tribunals favour employers?
There are aspects of the tribunal system that might provide some comfort to employers and employees alike. The rules that govern tribunals for instance provide that formality should be avoided where possible. Statistically however most claims that get to a hearing are resolved in favour off the employer. And significantly the number of claims being made to tribunals fell by two thirds in 2013. What does an employer have to fear? Well, things are not quite as rosy as that analysis might suggest.
If you were to attend a tribunal hearing, you would be hard pressed to distinguish it from a hearing in a court. Detailed directions will have been given for the production of witness statements and bundles of documents. The parties are likely to be represented. Witnesses (who can be ordered to attend even if they don’t wish to) give their evidence under oath and are cross examined. There are oral (and often written) submissions and a judgment is produced. Legislation and previously decided cases are frequently referred to. Employment is among the most complex and fast changing areas of law, sometimes involving consideration of European legal principles.
Most claims are settled before a hearing. In other words, the vast majority of employees (or former employees) succeed in obtaining a payment.
From their inception, tribunals were free to use. In 2013 however a scheme was introduced that obliged claimants to pay to make a claim, resulting in a massive downturn in applications. That scheme was effectively abolished a few months ago. It is therefore once again free to take a case to tribunal and the number of claims has doubled in the intervening period.
The hearing in a simple claim can take a day. More complex matters can occupy the tribunal (and an employer’s staff) literally for weeks. Although in theory the tribunal can direct a losing party to pay the costs of the winner, in practice such awards are rarely made. And the losing party may appeal (to the Employment Appeal Tribunal, in London).
There is no requirement that a party be represented before a tribunal. The employment judge that oversees proceedings will do his or her best to ensure an unrepresented party has a fair trial though the fact that a larger proportion of employers than employees are represented is widely accepted as a key factor in explaining why most cases are won by employers. The risks that such a claim present to an employer however (six figure awards are by no means unheard of) would suggest that representation by an expert is money well spent.
Finally, the tensions produced by a hearing can have regrettable effects. In one tribunal I witnessed a losing claimant pour a jug of water over his opponent. At least a soaking is one unpleasant experience you’re unlikely to have at tribunal.