Employment Tribunal and the Employment Appeals Tribunal - Assignment Example

Employment Law a Employment tribunal is and its role in resolving workplace disputes. Workplace disputes can be brought initially before the County Court, High Court or the Employment Tribunal depending on the nature of the dispute. Thus, claims for breach of contract, wrongful dismissal and injunction applications can be tried in the Courts and claims for unfair dismissal, discrimination, equal pay, deduction from wages, maternity rights in the Employment Tribunal. While claims for statutory breaches are tried before the Employment Tribunal, claims for common law or contractual breaches are brought before the Courts. There are exceptions to this rules discussed elsewhere below. Employees can make contractual claims in the Employment Tribunal only after their employment has ended and the Tribunal in such cases can only award up to £ 25,000. The Tribunal cannot also try cases involving personal injury, breach of agreement to provide accommodation by the employer to the employee, breach of agreement in respect of intellectual property, breach of agreement of confidentiality or breach of agreement in restraint of trade which can only be heard by courts (Nairns, 2008). The statutory limit of claim of £ 25,000 cannot be circumvented by making a claim for damages for wrongful dismissal for the maximum amount before the tribunal and making another claim for balance of damages in the High Court by splitting the same cause of action into two as held in Fraser v HLMAD (2006). Employment tribunal is machinery for dispute resolution. Employment tribunal can be approached by parties after the expiry of conciliation period. Rule 22 of the Employment Tribunals (Constitution and Rules of Procedure) Regulation 2004 bars a tribunal from hearing any case other than cases of discrimination, equal pay and whistle blowing until the expiry of the prescribed conciliation period of 13 weeks or 7 weeks from the date of claim made to the respondent depending upon the nature disputes. For disputes of technical nature such as deduction from wages, time off work, breach of contract, redundancy payments and paid annual leave, a lesser period of seven days conciliation applies. The standard conciliation period can be extended by two weeks if there are prospects of settlement as may be considered by ACAS whose duty is to promote the improvement of industrial relations. The judicial dispute resolution starts with employment tribunals which were originally created by Industrial Training Act 1964 and given common law jurisdiction to adjudicate claims for breach of contract by termination of employment. Thus, these tribunals which began as industrial tribunals have transformed into ‘employment tribunals’ in 1998. The power to settle employment disputes is conferred by section 3 of The Employment Tribunals Act 1996 in replacement of section 131 of the Employment Protection (Consolidation Act) 1978 The tribunals are preferred dispute resolution as they are designed to facilitate speedy resolution of industrial disputes which are often heavy with facts with their potential advantages of ‘ease of access, informality and inexpensiveness’. The employment tribunals having simplified pre-trial procedure with simplified pleadings, are vested with wide powers to adjudicate in ‘a common sense way’ as part of ‘good industrial practice’. However, the law they have to apply is so complex that they are often commented on the legality of the proceedings and decisions. The common sense access to quick justice though a laudable claim is not always compatible with the hard law that has to be followed in most of the cases. The quick and informal justice that an Employment tribunal can provide is in view of the undesirability of appeals that would complicate the matter further. An Employment Tribunal can only decide on the question of facts. Any appeal from its decision can only be made on a question of law. This rule is rigorously applied in that an appeal will be decided on law and remanded back to the tribunal to decide on the question of facts ( (Smith & Thomas, 2007) (Smith & Baker, 2010) and (Korn & Sethi, 2011). Employment Tribunals are located in twenty two places throughout England and Wales with the Head Office in London. In Scotland, there are three locations under the control of a Head Office in Glasgow. In 1997, all of them were brought under an executive agency ‘Employment Tribunals Service’ and in 2006 under the Department of Constitutional Affairs sequel to reforms. A tribunal would consist of three persons one of whom must be legally qualified with at least seven years standing and the other two are lay members. One of them represents of employers’ interests and the other, employees’ interests and they are both nominated by the Secretary of State. Though they are from their respective industries, the lay members are expected to act as independent members of the bench and in an impartial manner. The idea is make use of the lay members’ industrial experience so as to enable the Tribunal to take a sensible and practical decision. But this idea cannot be taken literally contrary to the plain meaning of statutory provisions even if the lay members consider such provisions as ‘unfair or ridiculous’. The composition of a tribunal could consist of a chairman alone as amended by The Tribunal Union Reform and Employment Rights Act 1993 in respect of certain classes of cases withdrawn or non-contested cases, Wage Act cases, cases for interim relief and common law proceedings except when they are concerned with matters of fact or law which should be dealt with by a full tribunal. The Employment Rights (Dispute Resolution) Act 1998 widened the categories of cases that could be governed by chairman-alone hearings such as hearings for guarantee payments, redundancy payments and union subscriptions as such categories have been on the increase. The tribunal has clerk for its administration. An applicant may both present and conduct his case in person or through representation by another person who may a practicing lawyer, trade union official. And the employer who is the respondent may be represented by his own legal or other personnel. There is no legal aid available for representation although a dismissed employee can obtain free preliminary advice from a solicitor or approach his trade union or to the CAB. In tribunal system, costs are not generally awarded, though residual powers are available to award costs especially in respect of frivolous or vexatious actions of either party originally. The powers now apply also to actions of the party or their representative who acted vexatiously, abusively, or unreasonably otherwise or by misconception. As if this is not enough in view of the ever increasing number of applications, loser-pays rule as ordinary costs rule was proposed in 2002 but later withdrawn as controversial. The 2004 Rules of Procedure made changes enabling an employer to claim their in-house costs of dealing with the case instead of as a legal expenditure besides wasted costs for wasting tribunal’s time (Smith & Thomas, 2007) , (Smith & Baker, 2010) and (Redman & Wilkinson, 2002) (b.) relationship between the Employment Tribunals and the Employment Appeals Tribunal. Employment Appeal Tribunal (EAT) was established in 1976. Consisting of High Court judges nominated by the Lord Chancellor, the EAT can sit anywhere in England, Wales or Scotland. As in Employment tribunal, it has representation from employees’ and employers’ organisations. Apart from a judge, the bench consists of either two or four lay persons enjoying equal voting rights. A single judge can hear an appeal alone if it arises from an order of chairman of the Employment tribunal alone. As in employment tribunal, the disputing parties can authorise persons of their choice to represent them in the hearings. The tribunal can award costs in the exceptional cases of unnecessary, improper or vexatious proceedings; and also in respect of unreasonable conduct resulting in bringing or conducting the proceedings. While the tribunal can hear cases on points of law, it can also hear appeals on fact from a decision made by the Certification Officer as per section 2 of TULCRA 1992 (entry on the list of trade unions) and section 6 of TULCRA 1992 (certificates of independence). The EAT has also been vested with review powers as in the case of employment tribunals. It can also adjourn proceedings if there is a likelihood of conciliated settlement (Lewis & Sargeant, 2004). 2 & 3 Micoch v The Sanctuary Workforce Limited 2011 Hearing of this case was held at Birmingham on 10 August 2011 under the case number 1314489/2009. The Employment Tribunal consisted of Judge Gaskell and two lay members Mr D.C.George and R.J.Scott. The claimant Micoch appeared in person and the respondent employer by written representations, by counsel and the employer himself. The unanimous judgment is in favour of the claimant awarding him a total of £ 9952.52 consisting of £ 8917.52 as basic award and compensatory award (loss of earnings and loss of statutory rights) for unfair dismissal and £ 1035 towards unpaid wages and unpaid holiday pay. The claimant has not been given additional award for breach of contract by the respondent. The order says that claimant’s claims are well founded. As expected of a Tribunal, the decision is based on facts. While the Tribunals are vested with powers of reinstatement or re-engagement, the claimant has not been reinstated nor did he make a claim to that effect. The facts and circumstances reveal that both the claimant and respondent have behaved with each other in an uncivilised manner. While it is understandable on the part of the claimant, the respondent should have conducted himself with restraint. While the past bad track record of the claimant could be used to the advantage of the respondent, the tribunal did not do so since the respondent voluntarily offered the claimant to re-employ him on the last but one occasion which absolved claimant of all his previous wrong doings. As expected of the Tribunal, such of those misbehaviours were not considered for influencing its decision (Micoch v The Sanctuary Workforce Limited , 2009). A dismissal for valid reason is permitted by the Employment Rights Act 1996 (ERA 1996) under five categories of (1) incapability or disqualification, (2) misconduct, (3) redundancy, (4) employee’s impossibility of continuance in the employment without contravening the statutory requirement or duty, and (5) any other substantial reason warranting dismissal (Korn & Sethi, 2011). Under section 94, no employee can be unfairly dismissed. It would be an unfair dismissal if the employer dismisses without valid reasons under the above categories. The rules for unfair dismissal are found in sections 112-126 of the ERA 1996. Rules 119-122 provide for compensation of a basic award and rules 123-124, a compensatory award. If the tribunal makes an order for reinstatement or reengagement as per rules 113-114 and the employ does not comply with it, the tribunal can make an additional award as per section 117. It is now replaced by the section 33 of the Employment Relations Act 1999. (Korn & Sethi, 2011). In the instant case, the tribunal has neither reinstated/re-engaged nor made an additional compensatory award. It is not clear whether such an award can be claimed when the employee himself has resigned though by compulsion of circumstances. The finding of the Tribunal that employer’s conduct was quite unbecoming and therefore the employee had the right to treat himself as constructively dismissed since the employer made his continuance in his employment impossible without hostile attitude, is justified. Moreover, the tribunal’s finding that the claimant could claim continuity of employment in view of his previous job transferred under the provisions of transfer of undertakings is in order. 4. Comment on the decision in Micoch. Do you agree with it and if so, why? lf you disagree, explain why. Overall, the Tribunal is justified in arriving at the decision of making the above said award which the claimant is fully entitled to as he could not serve under an employer with hostile attitude. Although he did not mean to dismiss him, the ill-treatment meted out to the claimant justified an award for wrongful dismissal. The three cases cited by the tribunal reinforce its decision. The first case justifies an employee’s assumption for his constructive dismissal in view of the employer’s conduct. Second case justifies that series of small incidents over a period of time make it impossible for the employee to continue in service any longer. The third case shows that employer has an implied duty under the contract of employment that he would not conduct himself in a manner that would destroy relationship with his employees. References Fraser v HLMAD, IRLR 687 in Korn Anthony, Sethi Mohinderpal (2011) Employment Tribunal Remedies 2011-2012, Oxford, Oxford Unversity Press 2006). Korn, A., & Sethi, M. (2011). Employment Tribunal Remedies 2011-2012. Oxford: Oxford University Press. Lewis, D., & Sargeant, M. (2004). Essentials of Employment Law. London: CIPD Publishing 8th ed. Micoch v The Sanctuary Workforce Limited , 1314489 (Employment Tribunal, Birmingham 2009). Nairns, J. (2008). Employment Law for Business Students. Essex: Pearson, Longman . Redman, T., & Wilkinson, A. (2002). The informed student guide to human resource management. Hampshire, UK: Cengage Learning EMEA. Smith, I., & Baker, A. (2010). Smith and Woods Employment Law. Oxford: Oxford University Press. Smith, I., & Thomas, G. (2007). Smith & Woods employment law. Oxford: Oxford University Press. Read More