04 July 2008
Department for Innovation, Universities and Skills (DIUS)
 
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Dismissal - fair and unfair: a guide for employers

URN No: 07/829/A1

Contents

For the Appendix containing further information go to:

Dismissal: fair and unfair: a guide for employers. Appendix Part 1
Dismissal: fair and unfair: a guide for employers. Appendix Part 2

Foreword

This guide is designed to help employers fulfil their obligations under current employment protection legislation. Under this legislation, employees who meet various qualifying conditions have the right not to be unfairly dismissed. Employees who have been unfairly dismissed are able to seek a remedy by complaining to an employment tribunal. Employment tribunals are independent judicial bodies.

The guide takes the form of a general description of the relevant provisions and an appendix, explaining some of the provisions in more detail.

The guide is written in general terms only. It should not be regarded as a complete and authoritative statement of the law and employers and employees should be alert to the possibility of developments in case law which may affect the rights of employees. The Advisory, Conciliation and Arbitration Service (Acas), an independent organisation originally set up under the Employment Protection Act 1975 and now constituted under the Trade Union and Labour Relations (Consolidation) Act 1992, can give more information and advice on the legislation.

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Introduction

Every year many employees leave their jobs - usually by mutual agreement with their employer. Very often the employer is sorry to see them go. At other times it is because the employer has dismissed them. The purpose of the unfair dismissal provisions is to protect employees against the hardship resulting from being dismissed unfairly. The Acas Code of Practice on disciplinary and grievance procedures aims to help employers to set up fair procedures for dealing with the type of problem which may lead to dismissal. It is intended to help both employee and employer and is based on good management practice.

Legislation provides that an employer may dismiss an employee if:

  • he or she has a valid reason for doing so; and, generally,
  • he or she acted reasonably in treating that reason as a sufficient reason for dismissing the employee.

This guide explains in what circumstances a dismissal may be considered 'fair' or 'unfair' and what kind of procedures an employer should adopt to conform with the legal requirements. It is recognised that the procedure that is appropriate in a large firm may not be appropriate or practicable in the case of a much smaller firm. But there are some basic features that all firms can adopt and which will prevent unnecessary problems. The guide concentrates on these.

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What is unfair dismissal?

What is dismissal?

It is usually quite evident to both employee and employer when an employee has been dismissed, but it should be borne in mind that a dismissal will also take place:

  • when the employee's limited-term contract expires but is not renewed (but see Those who may not complain of unfair dismissal). A limited-term contract is a contract for a fixed term or the performance of a specific task, or one which ends when a specified event does or does not occur;
  • when an employee has reason to resign because of certain conduct of the employer - known as 'constructive dismissal' (see Constructive dismissal).

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When is a dismissal fair or unfair?

The law on unfair dismissal does no more than give employees a legal right to be treated in the way in which a fair and reasonable employer would treat them anyway. For an employer to dismiss an employee fairly, he or she must both:

  • have a valid reason for dismissing the employee, and
  • act reasonably in treating that reason as a sufficient reason for dismissing the employee (see What is reasonable procedure and sufficient reason for dismissing an employee?).

The second of these conditions does not apply in cases where the dismissal is automatically unfair (see below) or where retirement is shown to be the reason for dismissal.

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What may be a valid reason for dismissal?

Legislation lists five specific types of reason which can justify dismissal. They are as follows:

Conduct
This is by far the most common reason for dismissal and the one which leads to the largest number of complaints of unfair dismissal. For this reason this guide is chiefly concerned with dismissal for disciplinary reasons. On the specific question of criminal offences see Dismissal in connection with criminal offences.

The retirement of the employee
Retirement became a potentially fair reason for dismissal on 1 October 2006.  If the employer shows it to be the reason for dismissal, whether the dismissal is fair will depend on whether the employer complied with the duty to consider working beyond retirement (see Retirement).

Capability
The employee is unable satisfactorily to do or does not have the qualifications for the job. The question of the employee who becomes unable to do his or her job because of illness is discussed further below (see Dismissal in connection with illness).

Redundancy
In general, an employee can have no grounds for claiming unfair dismissal if the dismissal was because of redundancy, that is because the employer had no work or insufficient work for the employee to do. There are, however, some circumstances in which it is unfair to make an employee redundant (see Dismissal on grounds of redundancy).

A statutory requirement
This may prevent the employment continuing, for example where a chauffeur has lost his driving licence and there is no other suitable job available.

Some other substantial reason
Experience has shown that the above reasons are likely to cover almost every case where dismissal is necessary. Situations may arise, however, where an employer has a good reason for dismissing an employee which is not one of those listed above. An example would be the dismissal of an employee who was taken on as a temporary replacement for a worker who was returning after being suspended for medical reasons (provided, of course, that it had been clearly explained to the employee concerned that the job was only temporary). For such a reason as this, described in legislation as 'some other substantial reason', the dismissal may also be fair.

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When is dismissal automatically unfair?

The dismissal of an employee will be held to be unfair if it is for one of the following reasons:

  • trade union membership, trade union non-membership, trade union activities or proposed activities, or use or proposed use of trade union services;

     
  • failure to accept an unlawful inducement by an employer to relinquish trade union rights or to disapply collective agreements;

     
  • failure to accept an offer made by an employer to induce the employee to be a trade union member;

     
  • refusing to make a payment in lieu of union membership, or objecting to their employer deducting a sum from their wages or salary to make such a payment.  (See also Interim relief);

  • because the employee was dismissed or selected for redundancy on maternity related grounds (see Dismissal on the grounds of pregnancy or maternity);


  • because the employee was dismissed or selected for redundancy for taking or seeking to take paternity leave (see Dismissal related to paternity leave);


  • because the employee was dismissed or selected for redundancy for taking or seeking to take adoption leave (see Dismissal related to adoption leave);


  • because the employee was dismissed or selected for redundancy for requesting flexible working arrangements (see Dismissal relating to the right to request flexible working arrangements);

     
  • because the employee was dismissed or selected for redundancy for having sought, in good faith, to assert a statutory employment protection right (see Dismissal for asserting a statutory right);

     
  • because the employee was dismissed or selected for redundancy for taking or proposing to take certain specified types of action on health and safety grounds (see Dismissal for taking action on health and safety grounds);


     
  • because the employee was dismissed on the transfer of an undertaking or part of an undertaking, and the transfer itself, or a reason connected with it, is the main reason for the dismissal, unless it can be established that the dismissal was for an economic, technical or organisational reason entailing changes in the work force (see Dismissal on the transfer of an undertaking);


     
  • because, subject to certain conditions, the employee was a shop worker or a betting worker and was dismissed or selected for redundancy for refusing to work on Sundays; or he or she was dismissed or selected for redundancy for giving, or proposing to give, an "opting out" notice to his or her employer; (see Sunday shop and betting work: employees rights);


     
  • because the employee was dismissed or selected for redundancy for performing, or proposing to perform, any duties relevant to his or her role as an employee representative or as a candidate to be a representative of this kind or as a participant in the election of such a representative (see Dismissal relating to activities as an employee representative);


     
  • because the employee was dismissed or selected for redundancy for performing, or proposing to perform, any duties relevant to his or her role as an employee occupational pension scheme trustee (see Dismissal relating to activities as an occupational pension scheme trustee);


     
  • because the employee was dismissed or selected for redundancy for reasons relating to the national minimum wage (see Dismissal relating to the national minimum wage);


     
  • because the employee was dismissed or selected for redundancy for reasons relating to the Working Time Regulations 1998 (see Dismissal relating to the Working Time Regulations 1998);


     
  • because the employee was dismissed or selected for redundancy for making a protected disclosure within the meaning of the Public Interest Disclosure Act 1998 (see Dismissal for making a public interest disclosure);


     
  • because the employee was dismissed or selected for redundancy for reasons relating to the Tax Credits Act 2002 (see Dismissal relating to the Tax Credits Act 2002);


     
  • because the employee was dismissed or selected for redundancy for taking, or seeking to take, parental leave (see Dismissal relating to parental leave);


     
  • because the employee was dismissed or selected for redundancy for taking, or seeking to take, time off for dependants (see Dismissal relating to time off for dependants);


     
  • because the employee was dismissed or selected for redundancy for taking lawfully organised official industrial action lasting twelve weeks or less (or more than twelve weeks, in certain circumstances) (see Dismissal during an industrial dispute);


     
  • because the employee was dismissed or selected for redundancy for exercising or seeking to exercise rights relating to trade union recognition procedures (see Dismissal on the grounds of trade union recognition);


     
  • because the employee was dismissed or selected for redundancy for exercising or seeking to exercise the right to be accompanied at a disciplinary or grievance hearing, or to accompany a fellow worker (see Dismissal in connection with disciplinary and grievance hearings);


     
  • because the employee was dismissed or selected for redundancy for performing or proposing to perform any duties relating to an employee's role as a workforce representative or as a candidate to be such a representative for the purposes of the Transnational Information and Consultation of Employees Regulations 1999, or for taking certain actions in connection with these regulations, or for proposing to take or failing to take such actions (see Dismissal relating to the Transnational Information and Consultation of Employees Regulations 1999);


     
  • because the employee was dismissed or selected for redundancy on grounds related to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (see Dismissal relating to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000);


     
  • because the employee was dismissed or selected for redundancy on grounds relating to the 
    Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (see Dismissal relating to the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002);


     
  • because the employee was dismissed without statutory dismissal and disciplinary procedures having been followed (see Dismissal without following statutory dismissal and disciplinary procedures);


     
  • because the employee was dismissed or selected for redundancy for reasons relating to the European Public Limited-Liability Company Regulations 2004 (see Dismissal relating to the European Public Limited-Liability Company Regulations  2004);


     
  • from 6 April 2005, because the employee was dismissed or selected for redundancy for reasons relating to the Information and Consultation of Employees Regulations 2004 for undertakings with 150 employees (from 6 April 2007 for undertakings with 100 employees and from 6 April 2008 for undertakings with 50 employees) (see Dismissal relating to the Information and Consultation of Employees Regulations 2004);


  • because the employee was dismissed or selected for redundancy for reasons relating to jury service (see Dismissal relating to jury service);


  • from 6 April 2006, because the employee was dismissed or selected for redundancy for reasons relating to the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 for undertakings with 150 employees (from 6 April 2007 for undertakings with 100 employees and from 6 April 2008 for undertakings with 50 employees) (see Dismissal relating to the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006);


  • because the employee was dismissed or selected for redundancy for reasons relating to the European Cooperative Society (Involvement of Employees) Regulations 2006 (see Dismissal relating to the European Cooperative Society (Involvement of Employees) Regulations 2006);


  • from 1 October 2006, because the employee was dismissed on grounds of retirement without the employer’s having complied with the duty to consider a request by him or her not to retire (see Retirement);


  • from 1 October 2006, because the employee was dismissed (or, from 6 April 2007, selected for redundancy) for exercising or seeking to exercise the right to be accompanied at a meeting to consider a request not to retire, or for exercising or seeking to exercise the right to accompany a fellow employee at such a meeting (see Dismissal in connection with meetings to discuss requests not to retire).

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Dismissal during an industrial dispute

It is automatically unfair to dismiss workers for taking lawfully organised official industrial action lasting twelve weeks or less. It is also unfair to dismiss them where they have taken action for more than twelve weeks if the employer has not first taken such procedural steps as are reasonable to resolve the dispute. It will be for the employment tribunals to determine whether an employer has taken all reasonable steps, and in doing so, they will have regard to the behaviour of both the employer and the union. For further information, see Industrial action and the law: a guide for employers.

Otherwise, subject to the exceptions listed below, an employment tribunal has no jurisdiction to determine a complaint of unfair dismissal from an employee dismissed while participating in official industrial action provided his or her employer:

  • has dismissed all who were taking part in the action at the same establishment as the complainant at the date of his or her dismissal; and

  • has not offered re-engagement to any of them within three months of their date of dismissal without making him or her a similar offer.

Likewise (again, subject to the exceptions listed below), an employment tribunal has no jurisdiction to determine a complaint of unfair dismissal from an employee dismissed while participating in unofficial industrial action.

The exceptions are that an employment tribunal can determine a complaint of unfair dismissal from an employee dismissed while participating in official or unofficial industrial action if the reason or main reason for the dismissal was:

  • the taking by the employee of certain specified types of action on health and safety grounds (see Dismissal for taking action on health and safety grounds); or

  • related to paternity or adoption leave (see Dismissal related to paternity leave and Dismissal related to adoption leave); or

     
  • on maternity related grounds (see Dismissal on the grounds of pregnancy or maternity); or

     
  • in respect of the taking by the employee of certain specified types of action as an employee representative or as a candidate to become an employee representative or as a participant in the election of such a representative (see Dismissal relating to activities as an employee representative); or

     
  • that the employee exercised rights under the Working Time Regulations 1998 (see Dismissal relating to the Working Time Regulations 1998); or

     
  • that the employee exercised rights prescribed in the Maternity and Parental Leave etc Regulations 1999 (see Dismissal relating to parental leave); or

     
  • that the employee asserted the right to time off for dependants (see Dismissal relating to time off for dependants) or

     
  • related to the right to request flexible working (see Dismissal relating to the right to request flexible working arrangements; or

     
  • that the employee had been summoned for jury service or had been absent from work on jury service (see Dismissal relating to jury service).

An employment tribunal can also determine a complaint of unfair dismissal from an employee dismissed while participating in unofficial industrial action if the reason or main reason for the dismissal was that the employee made a protected disclosure within the meaning of the Public Interest Disclosure Act 1998 (see Dismissal for making a public interest disclosure).

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What is reasonable procedure  (1) and sufficient reason for dismissing an employee?

An employer must act reasonably in all the circumstances in treating the reason for dismissing the employee as a sufficient reason for the dismissal. Not only must the employer have a valid reason for the dismissal, but also he or she must have acted reasonably in all the circumstances in dismissing the employee for that particular reason. The question whether the employer acted reasonably not only involves consideration of the way in which the dismissal was carried out, but also whether he or she acted reasonably in relation to the situation leading up to the decision to dismiss the employee. For example, if the employee was dismissed for misconduct or lack of capability, it is necessary to consider whether he or she was warned and given a chance to improve or, if redundancy was the reason for dismissal, whether the employee was considered for alternative work within the same organisation.

In deciding whether the employer acted reasonably in dismissing the employee the tribunal will also take account, amongst other factors, of whether he or she followed appropriate disciplinary procedures. When statutory dismissal and disciplinary apply and are not treated as having been complied with, a dismissal will be unfair if an employee is dismissed without the statutory procedure having been followed (see Dismissal without following statutory dismissal and disciplinary procedures). For further details of the statutory procedures see the Dispute resolution web page.

However, if an employer fails to follow a disciplinary procedure which goes beyond the statutory procedure, that failure will not by itself make the dismissal an unfair one - provided that properly following the procedure would have made no difference to the decision to dismiss, and that the dismissal was fair in all other respects.

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What is the Acas Code of Practice on disciplinary and grievance procedures?

Acas has produced a Code of Practice. This gives employers practical advice on how to deal with disciplinary matters in a way which is fair and can be seen to be fair by their employees. Tribunals take into account any provision of the Code which appears to them to be relevant to any question before them. They do not expect all employers to follow the Code to the letter regardless of their particular circumstances, but to decide to what extent it is practicable and necessary for an employer to do so given the size and administrative resources of his or her firm.

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Written statement of reasons for dismissal

The Employment Rights Act 1996 provides that employees who have been dismissed may request from their employer a written statement of the reasons for their dismissal, which their employer must provide within 14 days. Employees who are dissatisfied because they have not received a statement or believe the statement to be inaccurate may refer the matter to an employment tribunal. All employees with one year's continuous service with their employer qualify for this right. Employees who are dismissed at any time and for any reason while they are pregnant or during a statutory maternity or adoption leave period will be entitled to receive a written statement of the reason for their dismissal, without having to request it and regardless of their length of service.

There is of course nothing to prevent an employer from providing written statements voluntarily for employees who do not qualify for this right under employment legislation.

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Who may make a complaint of unfair dismissal?

In general any employee (2)  has the right to make a complaint of unfair dismissal to an employment tribunal provided that he or she has worked for that employer for at least one year, including any statutory period of notice (see Effective date of termination). In the following types of case, however, employees may make a complaint regardless of their length of service:

  • dismissal for trade union membership, trade union non-membership, trade union activities or proposed activities, or use or proposed use of trade union services;
     
  • dismissal for failure to accept an unlawful inducement by an employer to relinquish trade union rights or to disapply collective agreements
     
  • dismissal for failure to accept an offer made by an employer to induce the employee to be a trade union member;
     
  • dismissal for refusing to make a payment in lieu of union membership, or objecting to their employer deducting a sum from their wages or salary to make such a payment;
  • dismissal on maternity related grounds (see Dismissal on the grounds of pregnancy or maternity);
  • dismissal related to paternity leave (see Dismissal related to paternity leave);
  • dismissal related to adoption leave (see Dismissal related to adoption leave);
     
  • dismissal related to the right to request flexible working arrangements (see Dismissal relating to the right to request flexible working arrangements;
     
  • dismissal for having sought, in good faith, to exercise a statutory employment protection right (see Dismissal for asserting a statutory employment right);
  • dismissal for taking, or proposing to take certain specified types of action on health and safety grounds (see Dismissal for taking action on health and safety grounds);
  • dismissal of a shop worker or betting worker, subject to certain conditions, for refusing, or proposing to refuse to work on Sundays; or for giving, or proposing to give, an "opting-out" notice to his or her employer. See Sunday shop and betting work - Employee's rights. 
  • dismissal for performing, or proposing to perform, any duties relevant to an employee's role as an employee occupational pension scheme trustee (see Dismissal relating to activities as an occupational pension scheme trustee);
     
  • dismissal for qualifying for the national minimum wage or seeking to enforce a right to it (or because the employer was prosecuted as the result of enforcement action taken by the employee) (see Dismissal relating to the national minimum wage);
  • dismissal for exercising rights under the Working Time Regulations 1998 (see Dismissal relating to the working time regulations);
  • dismissal for making a protected disclosure within the meaning of the Public Interest Disclosure Act 1998 (see Dismissal for making a public interest disclosure);
  • dismissal for performing, or proposing to perform, any duties relating to an employee's role as an employee representative or as a candidate to be a representative of this kind or for participating in the election of such a representative (see Dismissal relating to activities as an employee representative);
  • dismissal for taking or seeking to take parental leave (see Dismissal relating to parental leave);
  • dismissal for taking or seeking to take time off for dependants (see Dismissal relating to time off for dependants);
  • dismissal for reasons relating to the Tax Credits Act 2002 (see Dismissal relating to the Tax Credits Act 2002);
  • dismissal on grounds related to trade union recognition procedures (see Dismissal on the grounds of trade union recognition);
  • dismissal for exercising or seeking to exercise the right to be accompanied at a disciplinary or grievance hearing, or to accompany a fellow worker (see Dismissal in connection with disciplinary and grievance hearings);
  • dismissal for reasons relating to the Transnational Information and Consultation of Employees Regulations 1999 (see Dismissal relating to the Transnational Information and Consultation of Employees Regulations 1999);
  • dismissal on grounds related to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (see Dismissal relating to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000);
  • dismissal for taking lawfully organised official industrial action lasting twelve weeks or less (or more than twelve weeks, in certain circumstances);
     
  • dismissal on grounds related to the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (see Dismissal relating to the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002);
     
  • dismissal for reasons relating to the European Public Limited-Liability Company Regulations 2004 (see Dismissal relating to the European Public Limited-Liability Company Regulations  2004);
     
  • dismissal for reasons relating to the Information and Consultation of Employees Regulations 2004 for undertakings with 150 employees (from 6 April 2007 for undertakings with 100 employees and from 6 April 2008 for undertakings with 50 employees) (see Dismissal relating to the Information and Consultation of Employees Regulations 2004);
  • dismissal on grounds relating to jury service (see Dismissal relating to jury service);
  • from 6 April 2006, because the employee was dismissed or selected for redundancy for reasons relating to the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 for undertakings with 150 employees (from 6 April 2007 for undertakings with 100 employees and from 6 April 2008 for undertakings with 50 employees) (see Dismissal relating to the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006);
  • because  the employee was dismissed or selected for redundancy for reasons relating to the European Cooperative Society (Involvement of Employees) Regulations 2006 (see Dismissal relating to the European Cooperative Society (Involvement of Employees) Regulations 2006);
  • from 1 October 2006, dismissal (or, from 6 April 2007, selected for redundancy) for exercising or seeking to exercise the right to be accompanied at a meeting to consider a request not to retire, or for exercising or seeking to exercise the right to accompany a fellow employee at such a meeting (see Dismissal in connection with meetings to discuss requests not to retire).

In the case of dismissal on certain medical grounds there is a qualifying period of one month's continuous employment before a complaint can be made.

(For further details of these categories and details about those who may not claim unfair dismissal see Those who may not complain of unfair dismissal).

If there is any doubt or disagreement about whether an employee is covered by the legislation the tribunal will decide.

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What happens when an employee makes a complaint of unfair dismissal?

Many disputes about the fairness or unfairness of dismissals are settled through agreed voluntary procedures without the employee making a complaint to an employment tribunal. The following section deals with what happens when an employee makes a complaint to an employment tribunal.

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What is the procedure for making a complaint?

The employee (called the applicant) can make an application to an employment tribunal (on the form ET 1(E/W) or ET1(Scot) as soon as the employer (called the respondent) has given the notice of dismissal. This application should give particulars of the grounds of the complaint and must normally be received within three months of the employee's effective date of termination (see Effective date of termination and Interim relief. If the application is received any later than that date the tribunal will consider the complaint only if they believe it was not reasonably practicable for the employee to have made the complaint within the three-month period and that it has been made within such further period as they consider reasonable. However, from the time limit will be extended in certain circumstances by a further three months where the employee has reasonable grounds for believing that a dismissal or disciplinary procedure (statutory or otherwise) is still in progress at the point where the normal time limit would have expired.

The office of the employment tribunals dealing with the employee's application form will send the employer a copy of the application and a form called a Notice of appearance (ET 3).The employer should fill in this form, stating whether or not he or she wishes to contest the case, and if so, giving particulars of the grounds for doing so. The employer and the employee may each request further particulars of the other's case. It is in the interests of both parties to fill in these forms as fully as possible so that the tribunal does not have to come back to them for further details and so that if the matter comes to a hearing both parties and the tribunal know exactly what is at issue.

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What is conciliation?

Once a complaint has been made to an employment tribunal, but before the hearing takes place, there is an opportunity for the case to be settled by conciliation. Copies of completed application forms and the Notice of appearance by the employer are sent by the employment tribunals to the Advisory, Conciliation and Arbitration Service (Acas), an independent service, quite separate from the employment tribunal. Conciliation is carried out by an Acas conciliator, who has a duty in most cases to try to assist, either at the request of the applicant and respondent, or on his or her own initiative. The conciliator's job is to try to help the respondent and applicant make a voluntary agreement to settle the complaint without it having to go before an employment tribunal.

The conciliator usually begins by talking separately, and in confidence, to the applicant and respondent, encouraging them both to use any agreed voluntary appeals procedure where this has not already been done. The conciliator will discuss the case itself, help them to understand particular points in the law and qualifying conditions, and may draw attention to particular features of the case, including decisions taken in previous cases which may be similar. However, he or she will not offer any opinion on the merits of either side's case or 'take sides' in any way. Many dismissals are not clear-cut issues and quite often, in discussion with the conciliator, matters will be seen differently with the result that a voluntary solution will be reached through conciliation, as an alternative to the case going to the tribunal.

Where the applicant and respondent are willing, the conciliator will explore the possibility of the respondent's reinstatement of the applicant in the same job, or re-engagement in some other job.

If an employee unreasonably refuses an offer of reinstatement any eventual award of compensation made by a tribunal can be reduced. However, most conciliated settlements are those where the respondent pays the applicant a mutually agreed sum of money in compensation.

The employment tribunal hearing is quite separate from conciliation. If a date for the hearing is arranged but a settlement seems likely the parties can write to the tribunal and ask for a postponement. The conciliator does not normally attend the tribunal hearings, nor does he or she give the tribunal any report on the conciliation action. Anything communicated to a conciliator is not admissible in evidence before a tribunal except with the consent of the person who communicated it.

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What happens if the complaint reaches a tribunal?

What sort of body is an employment tribunal?

Each tribunal normally consists of a chairman who is a lawyer and two other members, one from a panel of members representing employers, and the other from a panel of members representing employees. In certain circumstances however it may consist of a chairman sitting alone or with just one lay member. Tribunals hold most of the hearings in their own offices, which are situated in the larger towns and cities.

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What is a preliminary hearing?

This may be arranged, before the substantive case is heard, to enable a tribunal to determine any issue relating to the entitlement of any party to bring or contest proceedings to which the originating application applies. Any of the parties may apply for such a hearing, or it may be convened at the decision of the tribunal, but notice must be given to all parties in writing and an opportunity given to advance oral argument before the tribunal.

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What is a pre-hearing review?

A full tribunal, or a chairman sitting alone may conduct a pre-hearing review of a case in advance of the full tribunal hearing. If it appears that the case has little prospect of success either party may be ordered to pay a deposit of up to £500 as a condition of continuing to proceed with, or defend the case.

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What happens at the hearing?

If the complaint is not settled or withdrawn at an earlier stage, it proceeds to a full hearing by an employment tribunal. At the hearing, tribunals try to keep their proceedings as simple and informal as possible. Many applicants and respondents put their own cases to the tribunal although some choose to have a representative who may be a lawyer, trade union official, representative of an employers' organisation, or simply a friend or colleague.

The tribunal clerk explains the procedure to the parties before the case begins and the chairman will assist both parties in putting their case as the hearing proceeds. The tribunal will normally give both parties the opportunity to present their respective cases and question their own and the other party's witnesses. The tribunal panel may ask questions of the parties or their witnesses. It is in the interest of both applicant and respondent to attend the hearing. If one party is neither present nor represented, the tribunal may decide the case in their absence, after considering any written representations made. In some cases a tribunal finds it very difficult to reach a decision if a party does not attend and may adjourn the case. A tribunal may dismiss an application if the applicant fails to attend without explanation.

Tribunal hearings are generally completed in one day. Decisions may be by majority vote, but in fact nearly all are unanimous. The tribunal usually announces its decision and the reasons for it straight away. A written decision is also sent to the parties, generally within three to six weeks. Both parties have a right to ask for a review of the decision and a right to appeal against the tribunal's decision, on a question of law, to the Employment Appeal Tribunal. Information on how to apply for a review of the decision, and how to appeal, is sent to the parties with the tribunal decision.

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Is any financial assistance available for tribunal hearings?

Legal aid is not available at employment tribunals, but some employees may be able to claim a limited amount of free advice under the legal advice and assistance scheme. This does not cover the cost of a legal representative at the hearing (3)

Allowances are available from the tribunal office to cover the cost of travel to a hearing and other expenses both to the applicant and respondent, to the witnesses called and to representatives, including members of Citizens Advice Bureaux, but not full-time officials of employers' organisations or trade unions, barristers or solicitors or any other paid or unpaid professional person or organisation or organisations who represent parties as opposed to acting as their witnesses. Loss of earnings may also be paid up to a maximum. The tribunal can provide details of the current rate on the day of a hearing.

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What remedies may the tribunal order?

If the tribunal finds that the dismissal was fair, it will dismiss the application. If it finds the dismissal unfair, the tribunal will normally order that:

  • the employee be reinstated by the employer in the same job (see Order for reinstatement or re-engagement); or
  • the employee be re-engaged by the employer in a different job (see Order for reinstatement or re-engagement); or
  • the employer pays a sum of money to the employee in compensation (see How awards of compensation are worked out).

Orders for reinstatement or re-engagement normally include an award of compensation for loss of earnings.

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Do employment tribunals make awards of costs?

Costs (expenses in Scotland) are not normally awarded in employment tribunal cases. They can be, however, if the tribunal decides that a party has acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably in bringing or conducting the case. Costs of an adjournment or postponement may also be awarded when the adjournment or postponement was requested at the last minute by either party with no good reason or where it is necessary because a party has not come prepared to deal with issues which may be expected to arise at the hearing.

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What is the Acas arbitration alternative to the tribunal?

Acas has been given the power to provide an arbitration scheme for unfair dismissal disputes. This scheme  is a voluntary alternative to the tribunals. Separate guidance can be obtained from Acas.
 

1 Where employers and unions have agreed on dismissal procedures they can apply for exemption from the provisions of the legislation (see Exemption from the unfair dismissal provisions).

2  But see note in Appendix - Part 1, Those who may not complain of unfair dismissal.

3  A leaflet about this scheme is available from Jobcentre Plus offices. The Citizens Advice Bureaux also have information on the scheme.

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