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Jonathan Lawton this week takes a solicitor's look at the procedure used to bring a dismissal case before an industrial tribunal
THE PROCEDURE for bringing a dismissals case before an Industrial Tribunal is comparatively simple.
The appropriate form of complaint is known as an IT 1; a simple form requiring details of the length of employment, the place of employment, the date of dismissal and the circumstances about which the dismissed person wishes to complain.
That form is sent to the Central Office of the Industrial Tribunals in London and in due course the case will be allocated to the appropriate regional centre for hearing.
Once the IT 1 has been lodged a notice to that effect is sent to the employers who are invited to complete a form of reply known as an IT 3.
Again, this is a fairly simple form mainly requiring details of the employment; asking for confirmation of certain of the information provided by the employee as regards the date and period of employment and the amount of wages that are received. The form also requires the employer to set out the circumstances why the claim for unfair dismissal is resisted.
The document will ultimately form part of the papers which are before the Tribunal. Although, as we shall see, the proceedings before the Tribunal are comparatively informal the fact is that care should be taken in completing this form because it will be read by the Tribunal and taken into account as part of the proceedings. One should avoid 'giving too much information about the circumstances of the case because an error or omission on. that form may quite well prejudice the employer's case at the subsequent pro:ceedinks. Both parties will also receive a letter asking whether or not they are prepared to accept the services of a conciliation officer. The conciliation service is totally separate from the Tribunal officials and one of its functions is, and will continue to be, endeavouring to settle claims for unfair dismissal.
If both sides will accept the services of the conciliation officer he will then visit both the applicant and the employers; he will discuss the case with them and he will either advise the employer that in his view the employer would be better off allowing the case to proceed or alternatively he will advise the employer on the sort of sum that he might consider offering to the applicant to settle the matter.
Clearly, neither side is obliged to accept conciliation and even if the services of the conciliation officer are accepted neither side is then obliged to comply with the recommendation subsequently made. Once the case has been started either side can pursue the matter to the Tribunal hearing.
In many cases the services of the conciliation officer can be very helpful. Remember that, as is so often the case, in the final result one is talking about a commercial decision. Success, as we have previously, seen will involve you in some small outlay as an employer; failure may well involve you in payment of a substantial SUM of money. Therefore in cases where the result may be difficult to assess for any one number of reasons it is clearly preferable to compromise if that is possible. If the result is a payment to the employee that payment will initially be made to the conciliation department and they will produce a form of acceptance in full and final settlement which will be signed by both parties. That concludes the matter.
Difficulty
If conciliation is unsuccessful after a period of time has elapsed you will be notified of • a date and time of hearing.
The object of this legislation was to enable cases to be brought quickly before the Tribunals for resolution for obvious reasons. This, the Tribunals still try to do. However, owing to the increasing number of cases the case load for each regional centre is such that the length of time between notification of an application and the hearing is inevitably increasing. However, in due course you will be told not only the date but also the time at which to be present.
In general terms the hearings commence at 10 am, but some cases will be listed for 11.30am. There are then hearings commencing at 2pm. These timings reflect the decision that was taken as to the probable length of hearing of any case that was brought before the Tribunal. As a matter of practice the length of time taken by any case differs considerably and the estimated time of 1 hours is, as one might expect, nothing more than an average length of time.
The difficulty with which the Tribunal is faced is that it cannot tell from the documents that will be before it how long a case is likely to last or indeed whether or not it will be effective at all. It is not uncommon for one or other of the parties in an industrial case to fail to attend at the Tribunal hearing. This means that whether or not the case is dealt with by default, it will clearly occupy little or no time on the particular day. Equally, some complex cases may last not merely one but two or three days.
Effectively, therefore, a party to a case must assume that the case will involve his attendance either for a complete morning or an afternoon at the very least.
As a matter of practice Tribunals will endeavour to assist by releasing witnesses once they have given their evidence. For that to happen it is merely a question of advising the Tribunal that you would like a particular witness released as a matter of urgency.
The Tribunal itself is composed of three people whose names will normally be set out on a notice board outside the Tribunal so that they can be identified.
The chairman will be a lawyer; either a solicitor or a barrister. He will not necessarily have any background of industrial experience, but he will have been a lawyer for several years. The other two members of the Tribunal will represent either the employers, in the sense that the member will have a background of experience as an employer, or trade unions, in the sense that the member will have a background of trade union membership. Additionally, on special occasions, one or other of the members may well have some special knowledge of the particular industry out of which comes the claim which is before the Tribunal.
Union officials
The presence of union officials on the Tribunals must be a source of considerable satisfaction to those concerned with the legislation. When the Industrial Relations Act was in being the unions would have nothing to, do with Tribunals which owed their origins to that Act. Certain unions directly instructed •their officials not to appear before those Tribunals, although some local officers were prepared to represent their members in cases in which they felt that it was of particular importance that representation should be available.
Since the commencement a the Trade Union and Labour Relations Act the unions' attitude has substantially altered and it is now quite common to find senior union officials sitting as Tribunal members.
In my experience these representatives have been extremely valuable to the general understanding of the Tribunals as to the nature of the situations with which they have been faced. To enable Tribunals to reach a decision it is necesary for them not only to be aware of management prob lems and tactics, but also to be aware of employees' attitudes in such situations. Undoubtedly, the particular knowledge of union officials has been of assistance to the Tribunals generally.
In a claim for unfair dismissal the first question to which the Tribunal will direct its attention is as to whether or not there has been dismissal. In many cases the employer will be of the view that the employee voluntarily terminated his contract of employment whereas the employee will take the view that he was dismissed.
If the dismissal is accepted then the employer will be expected to present his case to the Tribunal before the dismissed employee puts his claim.
Although this is a curious reversal of normal court procedure the reasons are obvious; if there has been dismissal then the employer will have to show the Tribunal that the dismissal was fair otherwise the employee's claim will succeed. It follows that in a case where the employer does not agree that the employee was dismissed, •the employee as the applicant will first have to persuade the Tribunal that he was in fact dismissed.
In a case in which the employer is legally represented the Tribunal will be given a short outline of the circumstances of the case from the employer's point of view before the evidence is called. Evidence is given on oath, but once the oath has been taken the procedure before the Tribunal is comparatively informal.
Witnesses can sit down while they are giving their evidence, they may with comparative freedom refer to notes of documents which go towards supporting their case, and some evidence, which would not be accepted in other courts, will be considered by Tribunals even if they do not attach great weight to it. Once a witness has given evidence he may be cross-examined by the applicant or his representative as in any other court and then the various members of the Tribunal may also ask questions.
The proceedings in that sense will be familiar to anyone who has previously attended a magistrates' court.
Accessible
It is clear from this that a Tribunal is easily accessible, as was the intention of the legislation when the Tribunals were set up. But they are operating from a legal base. That is to say that the decision whether or not the dismissal is fair or unfair is taken on practical considerations which are related to legal requirements. It is therefore important to remember that you must have in your mind a clear understanding of the case or story that you wish to put to the Tribunal.
You will do yourself a disservice if you attend the Tribunal believing that because you are the management the Tribunal will necessarily accept from you an assertion that it was reasonable to terminate the applicant's contract of employment.
As we considered in the earlier article, there are specific grounds which will be accepted by the Tribunal ' as being fair grounds: you should know which of these grounds applies in your particular case, and you should therefore call evidence which is designed to explain to the Tribunal how the case fits into that particular heading.
The reasons why
You must take with you any documents which support your case. For instance, the contract of employment, any letters of warning that may have been given to the applicant, and, particularly, the letter of warning that preceeded the actual dismissal unless it was a summary dismissal for gross misconduct. If you have documents then copies should be available for the Tribunal if this is possible.
As in any other similar situation it is of prime importance that not only do you tell the Tribunal as clearly as possible your side of the matter but that you present the case to the Tribunal in a manner that will help them to understand what you are saying. Although the Tribunal members are there to listen, they will listen more sympathetically if you have obviously given thought to your case.
Once the case for each side has been presented to the Tribunal they will retire to consider their decision.
Tribunals will always give a decision on the day that the case is heard. Only in cases of extreme difficulty or cases that have lasted late into a day will the Tribunals reserve their decision. The normal practice is for the Tribunal to retire to consider the case, then to call the parties back to the Tribunal room and then give the decision e i It h e r fairly shortly or, sometimes, in great