Employment Tribunal - Essay Example

Employment Tribunal Introduction Disputes are inevitable in modern employer-employee relations. Methods to solve issues arising from workplace exist. Acas is one of the bodies that offer early conciliation in employment disputes. At Acas, there is deliberate reconciliation that has seen 75% of employment conflicts resolved through the Acas Arbitration Scheme in Britain (Mallon & Waisman 2011). Notably, there are a number of steps one can take to resolve employment disputes before going to court. More often, dialog with your employer is often considered the best strategy. However, the employment tribunal would be an alternative in case the dispute reaches a stalemate. It is recommended to be the last alternative. This paper will focus on demystifying specific tribunal proceeding with a view of undertaking critical analysis on its role in dispensing justice. One of the public hearing tribunals I have once attended is Archer-Hoblin Contractors v. MacGettigan on 28th April 2009. It was one of the most successful employment tribunal that ensued after an appeal was made by Archer-Hoblin contractors Ltd following a ruling of Employment Judge (EJ). During the case, Mr. MacGettigan had won a claim of payment for a holiday as provided under the Working Time Regulation (WTR) 1998. Consequently, the company was compelled to pay him Starling Pounds 1,457 (Cunningham & Reed 2014). Following this labor conflict between an employer and employee, a court tribunal was quickly constituted to listen to the complaints raised by the companys appeal. The issue as decided earlier by EJ was whether Mr. MacGettigan was an employee within the WTR stipulations. In the ruling, the EJ ruled that the plaintiff was duly employee who was entitled to holiday pay. While the ruling appeared to have wind up the case, the appeal led to a renewed conflict. It was one of the tribunals that did allow public attendance. Issues Raised in Tribunal The purpose of this tribunal was to establish whether there was any error in the EJ ruling. Besides, it reviewed facts and issues from both the company appeal and the defendant. Of employment tribunals held that day, the most common problem I noted was employees appeals against employers on health hazards exposures at workplace and remunerations. However, this was a unique case, where the company was appealing on this particular day. In my observations, there was an explicit format followed that at the end of the session allowed both the plaintiff and the defendant to give part of their argument. Unlike many court cases, I have attended; the process of this tribunal was systematic. During this tribunal, Mr. Taylor on behalf of the company raised his claims that in his submission, the judge erred in regarding the defendant WTR benefits when he did not merit because of two key reasons. Firstly, he observed in his submission that the judge erroneously in focusing whether the defendant performed work personally rather than in line with his terms of the contract. Secondly, identified that the ruling that Mr. MacGettigan was rightful beneficiary of WTR terms was inconsistent with his contractual right to providing a substitute and finding of such right awarded was misleading. On the other hand, Mr. MacGettigan in his defense noted that the ruling represented a true standing of WTR 1998 and protection of employees rights from unscrupulous human resource managers. Besides, he observed that under his terms of the contract, he had the right to provide a substitute for his job and as such, the ruling was not a sham. One thing I noticed as I followed this tribunal was the fact that parties could still disagree despite a court ruling and still, find a sense in arguing sensibly at a tribunal. On behalf of Mr. MacGettigan, Miss Stroud observed the tribunal should uphold the EJ ruling in order to set a precedent for future industrial tribunals. On her final submission, she admitted that she was contended on the initial ruling because of its inherent recognition of the right to remuneration. Moreover, she argued that the ruling was consistent with 15th October 2007 contract signed by the defendant and the company. It stipulated that Mr. MacGettigan would work for the company as a steel fixer for a period of over 5 months (Cunningham & Reed 2014). In her presentation, she argued that in the contract her client was doing so as a self-employed sub-contractor. In addition, Holland & Burnett (2013) the contract envisioned substitution clause that state that one will be paid for work they perform or when they arrange for the work done by a person with equivalent skills and expertise. A defense based on the EJ ruling that the employee, was employed, and the company held public liability insurance that would cover clients accidents. The contract further affirmed that he would be paid a holiday salary. Tribunal Process While I remained keen following the proceedings, I noted an amazing standard procedure of the process. On this particular tribunal, the first step involved opening remarks, presumably preliminary of the hearing. During this stage, two major things happened, firstly, the panel set its rule of engagement, and secondly both parties made their observations based on the framework provided by the chairperson. Evidently, the initial stage had a striking difference from any other cases I have attended. There was no contention, the parties agreed on the laid procedure that would guide the hearing. The session introduced the case. Second stage was perhaps the one I will call intrusive. The company representative, Mr. Taylor took the stage on the burden of proof ground. He presented the EJ ruling in the case that led to what he termed as an erroneous interpretation of WTR 1998. In his argument he used both documents such as employee contract copy, company policy on employees on contract and WTR document. The tribunal appeared to give all attention to Mr. Taylor as he narrates events that culminated to the court. While admitting that MacGittegi was their self-employed contractor, he argued for entitlement to WTR terms as established by EJ court. Third stage involved cross-examination from the Miss Stroud, on behalf of Mr. MacGettigan, the defendant. Notably, the questions asked sought to establish the terms of contractual employment that was awarded to the employee in question. Besides, the cross-examination session was lengthy and appears to dig into historical contractual policy while Stroud examines the copy of the contract term in line with WTR and company policy. In examining claims made by Taylor, she strived to show that he was misleading tribunal. Fourth stage involved questions from the tribunal. While it appeared to be repeating issues raised by Stroud, the bench sought clarity on three key issues. The term of employment, any material evidence to support claims raised and whether the company had in the past granted such offer as claimed by defense. The fifth stage appeared to overlap significantly with the fourth stage; there was re-examination based on the legality of the contract and implication when an employee transfers responsibility to another person. The issue of employment rights for enumeration appeared to take most of the session. The evidence produced was through documentation. While tribunals allow witness to take a stand, this case relied heavily on material document and legal interpretation. There was no argument whether the work was done or not since the company had acknowledge that the employee in question had executed a function using another party while on a holiday and demanded holiday payment. The sixth stage involved closing speeches from both parties. In their final submission, I noted how each part attempted to make desperately the last minute count. Taylor pleaded with the bench to review EJ interpretation and reverses the erroneous ruling while Miss Stroud strives to convince the tribunal to uphold the EJ ruling. Lastly, the tribunal adjourned, I learned that this adjournment is normally taken for the bench to take review of claims and make reserved judgment. Tribunal Ruling Cunningham & Reed (2014) notes that the tribunal took a judicial reprieve after listening to both sides to contemplate over the issues raised. The final ruling overturned the EJ initial ruling. In a 13-page ruling, the tribunal observed that EJ erred in law while deciding whether MacGettigan was a worker with WTR beneficial. Concerning WTR 2(1) (b), the tribunal noted that although the defendant was a contractual employee, his terms could not allow him to send a substitute. Besides, the tribunal upon reviews of precedent set by Consistent Group Ltd v. Kalwak that relied on EAT in dismissing the right of Kalwak [2007] to substitution. In this case, Kalwak was dismissed because he could not reassigned duties allocated to him based on his contractual terms (Cunningham & Reed 2014). The ruling, therefore, appeared to have borrowed from the 2007 tribunal precedent. In deciding whether the employee had right to send a substitute, the tribunal observed that the EJ erroneously suggested so. In essence, the employees were within his right to be paid for his personal work, sending a substitute impaired the contractual terms putting the defendant in a difficult position to make pay claims (Lower 2010). Moreover, the tribunal identified that no proper construction, the clause on substitution conferred unqualified right to McGettigan to provide a substitute that is unlawful unless on a sham interpretation of WTR (Employment Tribunal Service 2005). Tribunal Analysis Pothe (2010) defines employment tribunal as a body formed to determine disputes between employer and employees on the employment rights, often established after failure of any other available options or to hear an appeal of a ruling from a lower court. Notably, tribunal is an ultimate determinant in any employment case, and the ruling becomes final. Thornton (2013) identifies that tribunal are established to solve three key issues, unfair dismissal, discrimination in place of work and redundancy payments. In essence, it mimics a court hearing having both the defendants and plaintiff, however they are not formal. Nobody puts on a gown or a wig. Like a court, it acts independently and cannot give legal advice. In my view, the tribunal achieved fairness and speedy execution of the case with uttermost level of expertise. Borrowing from the Protectacoat Firthglow Ltd v. Miklos Szilaghyi [2009] IRLR, the issue of the WTR and contract employees identified that the contract was sham and did not allow an employee on contract basis to reassign a duty. Smith in her ruling unidentified that it would expose companies to fraud and unfounded claims (Emir 2012). Besides, Hann & Teague (2012) state that Ready Mixed Concrete v. McKenna recognized that for employees working on the basis of self-employed, they have unqualified power of delegation within the meaning of WTR 1998. Another precedent set includes MacFarlane v. Glasgow City Council [2001] IRLR 31, this employment tribunal established that provided substitution on limited grounds where appellant was entitled. This is because it was well written in the contract of gymnastic classes (Turner 2013). Conclusion My day in tribunal hearing provided a unique position to reflect on how many employment disputes are settled in a tribunal. As noted earlier, tribunal has formality and relies heavily on legal interpretation; however, it is not a court. In the light of the case, the bench was modest, it interrogated issues, listened to both sides of the argument, and the ruling was objective and fair as per the WTR and employee contract terms. References List Cunningham, N., & Reed, M. 2014. Employment tribunal claims: Tactics and precedents. Emir, A. 2012. Selwyns Law of Employment. Oxford: OUP Oxford. Employment Tribunals Service (Great Britain). 2005. Making an appeal to an employment tribunal against an industrial training levy imposed by an industry training board. London: Department of Trade and Industry. Hann, D., & Teague, P. 2012. The changing role of employment tribunals: The case of the Employment Appeals Tribunal in Ireland. Economic and Industrial Democracy. doi:10.1177/0143831X11419249 Holland, J. A., & Burnett, S. 2013. Employment law. Oxford: Oxford University Press. Lower, M. 2010. Employee participation in governance: A legal and ethical analysis. Cambridge: Cambridge University Press. Mallon, C., & Waisman, S. Y. 2011. The law and practice of restructuring in the UK and US. Oxford: Oxford University Press. Pothe, I. 2010. Involvement and rights of employees in transfers of undertakings: Comparative study of Switzerland, the United Kingdom and the United States. Saarbru?cken, Germany: LAP Lambert Academic Publishing. Thornton, P. 2013. Employment tribunal & employment appeal tribunal fees. Turner, C. 2013. Unlocking Employment Law. Hoboken: Taylor and Francis. Read More