10 steps to tribunal success
Related posts:No related photos. 10 steps to tribunal successOn 27 Jul 2004 in Vexatious claims, Personnel Today TheHR manager’s worst nightmare is ending up at an employment tribunal. HeatherFalconer shares 10 steps to surviving the experience1Consider applying for a pre-hearing reviewIn2001, the Government introduced the wider use of pre-hearing reviews to weedout cases with little chance of success. If the tribunal decides that successis highly unlikely, it can demand a deposit from the applicant of up to £500.Costs can also be awarded up to £10,000 if the tribunal believes a party wasunreasonable in persisting with the claim, or if it acted vexatiously,abusively, disruptively or otherwise unreasonably in the course of proceedings.Employees will be barred from bringing claims unless they have followed thestatutory grievance procedures due to be introduced in October this year. 2Respond promptly to the originating applicationThenotice of appearance (IT3) setting out your response to the claim must bereturned within 21 days of receiving the originating application (IT1) and youmay need to get legal advice first. Failure to do this may mean you can take nofurther part in the proceedings. If you do submit it late, give an explanationfor the delay. It will be considered by the chairperson, who may grant anextension, but they can order you to pay costs.3Get as much information about the case as you canYoucan apply to the tribunal to order the applicant to provide further and betterparticulars of grounds, contentions or facts relevant to the claim. This willgive you a better idea of the case you will face. Failure to com-ply mightresult in the claim being struck out. 4Disclose all relevant documents to the caseTheparties will be asked to produce a list of documents relevant to the case intheir control or possession, or those they had a right to take possession of,inspect or take copies of, and serve to the tribunal. The parties are thenallowed to inspect any of the documents listed by the other party unless theyare privileged. The term ‘document’ not only means paper documents, but alsoany evidence or information, including e-mails, videos and photographs. Thoughthere is no general duty to make a disclosure, a tribunal is likely to order itwhere a prior request by correspondence has been refused or ignored. Failure todisclose relevant documents may also cause a tribunal to order costs againstyou. All relevant documents should be disclosed even if they are damaging toyour case. 5Consider whether documents are privilegedPrivilegeddocuments are covered by legal professional privilege, such as communicationsbetween solicitor and client, litigation privilege or those made ‘withoutprejudice’. To be privileged, the document must be genuinely aimed at achievinga settlement. It is not sufficient to mark it ‘privileged’ or ‘confidential’.6Prepare statements for all key witnesses as early as possible Witnessstatements are normally exchanged in advance, and then parties will be examinedand cross-examined on them at the hearing. The exchange of witness evidencenormally happens after the disclosure of documents. Sometimes the tribunalorders it by a certain date, but otherwise, the parties agree on a date betweenthemselves.7Ask for a witness order if necessary to secure attendance of key witnessesThetribunal may make an order for a witness to attend the hearing if a partybelieves a wit-ness with relevant knowledge will not attend voluntarily.Witnesses should be informed of the hearing details, given a copy of the statementand any documents referred to in advance, and should be told what will happenat the tribunal, such as cross-examination.8Brief expert witnessesExpertwitnesses can be called on to give a written statement and be subjected tocross-examination. Where possible, the tribunal will prefer both parties to usethe same expert. If not, they may encourage the expert witnesses to meet beforethe hearing to try and resolve any differences of opinion. Send the witness aletter identifying particular questions and general subjects they may have toaddress. 9Consider asking for orders for questionsEitherparty can be ordered to answer questions in writing before the hearing if itthinks this may clarify any relevant issues in advance. 10Consider settling to avoid further costs, bad publicity or damage to morale Theparties can agree to stop tribunal proceedings at any time by signing asettlement agreement either involving Acas (a COT3) or between themselves (acompromise agreement). This binds them legally so the employee cannot presentthe same complaint to a tribunal again.ManagingDisputesDon’tcome off worst in disputes with staff. Personnel Today’s new one-stop guide tomanaging disputes explains the new disciplinary and grievance procedures, andlooks at what to do if the dispute ends up at a tribunal. Order your copy on01371 810433 or e-mail [email protected] purchase price: £60 (usual price £75) Previous Article Next Article Comments are closed.