How does an Employment Tribunal hearing work?

When you make an application to an employment tribunal, you will be invited to a hearing where your case will usually be heard by three presiding judges, called the Tribunal. One of these judges will usually be the Employment Judge, with the other members of the Tribunal being part of the local business community.The important thing to remember about employment tribunals is that they are run in much the same way as a court of law. The layout of the tribunal is like the County Court. And when you give evidence to the tribunal this is done under oath. If you lie, this would be considered perjury, which is a serious criminal offence. Also, any witnesses that you bring with you to speak on your behalf will also be asked to take an oath before they give their evidence.
It is completely free to make a claim to an employment tribunal, but if you need legal advice on a specific element of employment law, you will have to pay your employment law solicitor’s fees. In addition, if you were to lose your case, you could be ordered to pay the costs of the other party.
The hearing will only consider specific aspects of employment law. You should assess your claim with employment solicitors to ensure you are making a well-defined claim to the employment tribunal. Claims of unfair dismissal or discrimination are good examples of the type of claim that a tribunal can hear. Beware that a tribunal will not look on your case favourably if it thinks you are wasting its time, or that you do not have a strong case. This is why the advice of employment solicitors is vital before you make a formal claim to an employment tribunal.Any claim you want to make must be made within three months of the event you are complaining about taking place, or three months after you left your employer for claims of unfair dismissal. These time limits are generally quite rigid, but in some circumstances the Tribunal may allow your claim if you exceed them.

Transfer of Undertakings (Protection of Employment) Regulations

The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) protects employees' terms and conditions of employment when a business is transferred from one owner to another. Employees of the previous owner when the business changes hands automatically become employees of the new employer on the same terms and conditions. It's as if their employment contracts had originally been made with the new employer. Their continuity of service and any other rights are all preserved. Both old and new employers are required to inform and consult employees affected directly or indirectly by the transfer.

The Equality Act 2010

The first point to note is that the act does not specifically mention or define associative or perceptive discrimination. Instead, it defines direct discrimination in a way that is wide enough to cover both of these types of claims:

"A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."

The key concept is that the person bringing the claim does not need to have the protected characteristic. It is sufficient that the treatment is because of a protected characteristic. The protected characteristic can belong to another person or it can be a perceived characteristic which the employee does not actually have. An individual will also be able to bring a claim for harassment in those situations.

Associative Discrimination

Associative discrimination means direct discrimination against someone because they are ‘associated’ with another person who possesses a protected characteristic. For example, refusing to employ someone because their partner is a Muslim, even though the prospective employee is not themselves a Muslim.

Currently, legislation expressly applies this to the protected characteristics of race, religion or belief and sexual orientation. The recent case ofColeman v Attridge Law also applied it to disability discrimination and, arguably, other protected characteristics.

From October 2010, the Equality Act will expressly extend this protection to the characteristics of age, disability, gender reassignment and sex. Only the characteristics of marriage, civil partnership, pregnancy and maternity will not be covered.

As a result, it will be possible for claims to be made on the grounds of a discrimination due to association with a disabled person, for example an employee being discriminated against or harassed because they are the parent of a disabled child or the partner of somebody undergoing gender reassignment.

Other areas where associative discrimination is likely to be raised include:

• redundancy selection criteria e.g. employees claiming that their absence history should be disregarded because it relates to time they have taken off to care for a disabled relative; and 

• flexible working requests e.g. an employee who cares for an elderly parent has a flexible working request turned down but the employer grants all similar requests made by employees who care for children.

Case law will emerge before long addressing these kinds of issues. It is in respect of carers that the impact of this strand of discrimination will be felt by employees and employers. Every day, another six thousand people take on a caring responsibility for ill, frail or disabled family members, friends or partners. 

Employers are, however, permitted to continue to offer childcare facilities to employees based on the age of the child, up to and including age 16, without being open to challenge from other employees.

Once again, it should also be noted that there is no requirement for any actual association between the claimant and a person with a protected characteristic. It is sufficient for the protected characteristic to be the reason for the treatment. For example, an employer asks a manager to interview only applicants under 30 for a position within its marketing team. When the manager refuses to do so, he is demoted. This could constitute direct discrimination. 

Perceptive Discrimination

Perceptive discrimination means direct discrimination against someone because they are thought to possess a particular protected characteristic. It applies even if the person does not actually possess that characteristic.

For example, where someone is verbally abused because he is perceived to be homosexual, even though he is actually heterosexual.

Currently, legislation expressly applies this to the protected characteristics of age, race, religion or belief and sexual orientation. 

From October 2010, the Equality Act will expressly extend this protection to the characteristics of disability, gender reassignment and sex. Only the characteristics of marriage, civil partnership, pregnancy and maternity will not be covered.

Other examples of perceptive discrimination include:

• rejecting a job application submitted by a white person whom the employer wrongly assumes to be black because they have an African name

• subjecting an employee to religious abuse on the basis that he supports a particular sports team, even though he does not actually belong to the religion associated with that team.

What should employers do?

It is important to note that the act does not impose a duty to make “reasonable adjustments” for employees who have responsibilities as carers. However, employers should be careful to ensure that they take a consistent approach to flexible working applications and that they do not treat one group of carers (e.g. those caring for disabled relatives) less favourably than others when considering flexible working requests.

Employers should ensure employees are aware that discriminatory behaviour is not acceptable, no matter who it is directed at, and that discriminatory banter" will not be tolerated. Employers may wish to consider reviewing their equal opportunities and harassment policies to check that this is covered and providing updated equal opportunities training to employees. 

PROPOSAL TO SCRAP THE DEFAULT RETIREMENT AGE

The Default Retirement Age of 65 was introduced in the Employment Equality (Age) Regulations 2006. Generally speaking, it allows employers to compulsorily retire employees aged 65 or over without risking unfair dismissal or age discrimination claims provided a specified procedure is carefully followed.

The Government is proposing that, subject to the outcome of the consultation:

• from 6th April 2011, employers will not be able to issue any notifications for compulsory retirement using the DRA (Default Retirement Age) procedure;

• between 6th April 2011 and 1st October 2011, only people who were notified before 6th April 2011, and whose retirement date is before 1st October 2011 can be compulsorily retired using the DRA;

• from 1st October 2011, employers will not be able to use the DRA to compulsorily retire employees; if an individual employer wishes to use compulsory retirement (at any age) the individual employer will have to be able to demonstrate that it is objectively justified. Examples could include air traffic controllers and police officers.

It is important to note that employers would not be able to compulsorily retire employees whose 65th birthday falls on or after 1st October 2011, even if they gave proper notice under the current statutory retirement procedure before 6th April 2011 (such retirements would have to be objectively justified or rescinded). Furthermore, employers would not be able to give ‘short notice’ after 6th April 2011 to an employee whose 65th birthday falls before 1st October 2011 under the current ‘continuing duty’ arrangements because these would be repealed with effect from 6th April 2011.

This measure is one of the steps Government is taking to encourage people to work for longer against the backdrop of demographic change. Others include reviewing whether the state pension age should increase to 66 and re-establishing the link between earnings and the basic state pension.

The consultation document indicates the proposals will ‘help’ employers by removing the administrative burden of statutory retirement procedures. If the DRA goes, then so would the employees’ ‘right to request’ working beyond retirement and the requirement for employers to give a minimum of 6 months notice of the intended date of retirement.

With respect, this is rather disingenuous, the burden of establishing objective justification (should this even be possible) or going through other formal procedures, such as capability or redundancy, prior to dismissal is likely to be just as, if not more, onerous. The consultation document itself acknowledges that employees would still be able to request to stay on after an employer’s objectively justified retirement age and the employer, in following a fair procedure, would need to properly consider such requests. Whilst recent case law indicates that it is possible for an individual employer to succeed in establishing objective justification of a compulsory retirement age, it is not yet possible to say that this could be safely relied upon by a wider range of employers. The removal of the DRA will also make workforce planning more difficult and increase the number of tribunal claims, particularly in light of the incredibly short timescale proposed.

Although the consultation document does not specifically mention it, another effect of these proposals would presumably be the removal or restriction of current exception allowing employers to reject applicants for employment on the basis that they are within 6 months of reaching the DRA. This would mean that employers would be at greater risk of tribunal claims for age discrimination at the recruitment stage as well as when ending employment.

Effective performance management, for employees of all ages, will become increasingly important. Employers should also consider brushing up on their knowledge of disability issues and the duty to make reasonable adjustments.

Whilst the proposed removal of the DRA may be good news for those approaching retirement who wish to stay in employment, it may have a detrimental effect on younger workers with families to support who would otherwise be filling their shoes. We do not claim to be economists, but it seems obvious that there is, after all, only so much work to go around. Either there will be fewer jobs available for younger people, or there will be shorter hours or lower pay for all.

Most commentators are prepared to accept that, for economic and demographic reasons, a change to the DRA is unavoidable. However, raising the DRA in line with state pension age would seem to be a more coherent option and would give employers the time required to prepare and adjust their policies and practices.

Employers Be Prepared

 There are terms and conditions one must follow in order to lessen any claims an employee has against a company for unfair practises.  There are national laws, though some are changing, that a company must adhere to.  In order to avoid breaching the UK regulations as it pertains to employee and employer relationships, one must keep updated with the changes the new government is making.  Below is information regarding pay, minimum wage, sickness, time off/ holidays, and working hours one needs to be aware of. 

Pay:

According to the terms and conditions of UK employment laws, employees must get a pay statement from their employer.  They must also be told when and how they will get payment including such things as sick, holiday, and time off pay.  Any performance related payment must also be part of the terms and conditions an employer offers. 

Minimum Wage:

There is a national minimum wage (NMW) a company must offer.  This rate means no employee can make lower than that wage no matter where they work.  For workers over 22 years of age a company must pay out £5.80 per hour.  A person 18 to 21 must make at least £4.83 per hour.  Individuals 16 to 17 must make £3.57 per hour.  However, these current rates will be changed in October 2010.  The new rates will be £5.93, £4.92, and £3.64 per hour, respectively. 

Sick Time:

According to employment laws there are two types of sick pay: company and statutory.  An employer can have a company programme, which means a worker is paid as stated in the employment contract the person signed.  Statutory payment is based on a company without a policy, in which you are still entitled to payment if you are sick under the SSP.

Holiday/ Time Off:

The basic regulations state all labourers are entitled to time off with a minimum of 5.6 weeks paid leave throughout the year.  However, an employer can decide to offer more time off in a year. 

Working Hours:

There are also rights workers have regarding working hours.  A full time employee cannot work more than 48 hours on average in a week, over a 17 week period.  In other words an employer could have you work 48 hours in a 16 week stretch, but not 17 weeks under the current employment laws.

Fighting Employment Laws

The United Kingdom has clear employment laws, which have been modified in recent months.  The new government has examined certain regulations in the labour force.  There are changes coming and one of these modifications may be a result of a recent strike blocked.

The National Union of Journalists are about to fight the European Court after they decided to stop a strike from occurring by Johnston Press.  A solicitor as part of the case is preparing a case.  It is going to challenge the UK in the European Court on the basis of human rights violations.  The violation the lawyer is outlining in the case states the news group was prevented from having a strike because of technicalities that go against human rights.

Johnston Press asked for an injunction in the High Court in May.  Their reasoning was based on not employing the journalists wishing to strike.  They stated the journalists were not working for them in a direct manner.  John Hendy is in charge of the case and is trying to base it on a breach of employment laws. 

Hendy feels it is "absurd" that a legal technicality has stopped the union from getting fair rights, and further feels it was against their human rights.  The current employment laws are complicated. 

It makes it difficult for anyone to operate without making a claim against a company.  Overall, Hendy wants the regulations to be clarified in an attempt to create a precedent that would be clear to all companies and not just Johnston Press.  Without clear rights it is hard to know where the line can be drawn between employer and employee.

This may be a current case in the media, but more has to come from the overall topic.  An employee should have the ability to stop their employment, get paid for their work, and have fair working conditions.  Any employee who feels this is being violated and is in a union should have the right to try to get the fair working conditions. 

The union did start pay negotiations on behalf of the employees, which would end the need for the employees to stop working during the solution of the issues.  The fact about this case is that unions and an ending to work during negotiations have gone on for several decades.  The employment laws in place have been in place and modified over centuries in order to fix what is wrong in the employment industry

Is my boss being fair?

One of the fundamental principles of employment law is the requirement on an employer to act reasonably. When it comes to taking action against employees, whether this be in the form of warnings or dismissal, the procedures have been set down to help form a framework that would encourage a reasonable decision.
Any decision made by an employer is ultimately open to challenge. One issue for employers to be wary of is that there will be a claim that the real reason for taking the action was not for the reason given but for some other unfair or discriminatory reason. Where no procedure has been followed it becomes much harder for an employer to show the real reason for the decision taken. When a procedure has been followed it becomes much harder for the employee to claim that it was for some other reason, especially if they havent raised that within the procedure itself.

Made to Retire?

The most common argument raised for the need to retire an individual is health and safety. However, when considered properly there is rarely any real foundation to this. An employee is unlikely to suddenly become a health and safety risk overnight, unless you are throwing them a party and lighting a lot of candles. When looked at more closely what is really meant is that there is a belief that they are no longer capable. People age differently and you could have someone working at age 65 who is much more capable than their younger colleagues. Don’t make assumptions that people under 65 are risk free and people over 65 are walking hazards. Currently, to retire an employee at the age of 65, companies need to follow the statutory retirement procedure. This requires you to give between 6 to 12 months written notice of the fact that you intend to retire them, the date on which retirement will take place and their right to request to continue working beyond that date.

If an employee wants to continue working beyond retirement then they must make a formal written request to do so, stating if they wish to continue working indefinitely, for a fixed period or until a set date. This request must be made within 3 to 6 months of the intended retirement date.

Employment Tribunals Rising

The Employment Tribunals Service has published its annual statistics for 2009-10, showing the number of claims in the Employment Tribunal was 236,100 in 2009-10, representing an increase of 56% on 2008-09. The key statistics in the annual report are: • the number of cases in Employment Tribunals was 236,100 in 2009-10, an increase of 56% on 2008-09. This increase was due to: – a 90% rise from 2008-09 in the number of multiple claims; – a 14% rise from 2008-09 in single claims; and – the changing economic climate. • the jurisdictional complaints contained within those cases amounted to 392,800, an increase of 47% on 2008-09, of which: – 126,300 were unfair dismissal, breach of contract and redundancy pay (an increase of 17%); – 95,200 were working time (including 10,600 airline cases); and – 75,500 were unauthorised deductions (up from 33,800 the previous year). • the Employment Tribunal had 404,800 cases outstanding, which is up from 290,200 the previous year