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5th May 2005, Page 34
5th May 2005
Page 34
Page 34, 5th May 2005 — Use the system
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Which of the following most accurately describes the problem?

New laws have made it tougher for disputes

to reach employment tribunals. Patric Cunnane explains how the system woRs.

The introduction of mandatory disciplinary and grievance procedures in October 2004 was designed to cut down on the number of workplace disputes which have to be sorted out by Employment Tribunals. The change was introduced under the Employment Relations Act 2002.

What is an Employment Tribunal?

A Tribunal comprises a chairperson and two lay members, appointed by the Secretary of State for Trade and Industry after consultation with employee and employer organisations. Individuals can also apply lobe appointed.

Tribunals take most cases covered under employment legislation. They must interpret the law to give effect to the Human Rights Act 1998 and they are bound by the rules of natural justice, which means they have to demonstrate an absence of bias.

They will hear cases on all forms of discrimination, trade union rights, parental rights, minimum and equal pay and the right to request flexible working arrangernents.They can make a variety of awards including compensation, reinstatement and equal pay.

They can also hear breach-of-contract cases, providing the employment has ended. Otherwise such cases must go before a County or High Court. The advantage of Tribunals is that they are quicker and less expensive; the disadvantage is that there is usually a three-month time limit for presenting a breach-of-contract case, rather than the six years that applies in civil courts.

How are claims pursued?

An employees pursuing a claim must submit an application to his regional employment tribunal office on forms obtained from a job centre or advice agency.

He should list as many grounds as he can for their claim because it is difficult to add more once a claim has begun. A dismissal claim might include elements of unfair dismissal and

Meeting the time limits

Each piece of employment legislation has time limits beyond which claims will not normally be accepted. However, Tribunals can extend the time limit if it is shown that the applicant was not aware of the basis for making his claim or had been wrongly advised about his rights.

Fore example, an applicant working for a transport company complained to the Vehicle Inspectorate about alleged illegal practices by his employer. It was a classic case of a protected disclosure under the whistleblowing legislation. His employer sacked him but because of poor advice he did not bring his case in time. The tribunal extended the time limit.

Rights of access

As mentioned, the introduction of mandatory grievance procedures was intended to cut the workload that comes before Tribunals. In the past a case could be lodged with a Tribunal while an internal appeal was under way with an instruction to delay the Tribunal hearing until the internal procedure was over. However under changes in the Employment Relations Act 2002 that is no longer possible — the internal grievance procedure must be exhausted before a claim can be sent to a Tribunal. The Tribunal can also decide on a case without a hearing if both parties consent. There is a period of conciliation of between seven and 13 weeks before the hearing which is designed to encourage a settlement.

This new law also gives Tribunals the right to throw out weak or ill-found cases at a pre-hearing review, for which they will ask a deposit of £500 from the employer or employee's side.The deposit is refunded unless the claim is lost and the Tribunal makes a cost award..

At the Tribunal

Full Tribunal hearings normally take place in public within three months of the employee's claim being lodged. Some cases, where the facts are not in dispute, might be dealt with by the chair alone. Applicants can be represented by a representative of their choice and they are empowered to call witnesses. The Tribunal can grant a witness order compelling witnesses to attend; they must then be given paid time off by their employer. It can, however, set a limit on the number of witnesses.

Costs Claims viewed by the Tribunal as having little chance of success which it believes have been brought by the applicant for "vexatious or disruptive reasons" can result in costs being awarded against the applicant. This can also apply to representatives who have "acted unreasonably' in the way that they handled the ease.

Appeals

Appeals against an Employment Tribunal's interpretation of the law are heard by the Employment Appeal Tribunal (EAT) in England, Wales and Scotland and by the Court ofAppeal in Northern Ireland. Such appeals must be lodged within 42 days of the decision.

Alternatives

Unions and employers with a good working relationship will often look for other methods to resolve their differences. The Employment Rights (Disputes Resolution) Act 1998 introduced a system of voluntary but binding arbitration which is meant to he an alternative to a Tribunal claim.The scheme is run by ACAS (Advisory, Conciliation and Arbitration Service) which also offers conciliation services for other workplace disputes, such as when pay bargaining breaks down.


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