EMPLOYMENT TRIBUNALS

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LTB447/09

EMPLOYMENT TRIBUNALS – MEMBERS’ RIGHTS OF ACCESS AND THE BRANCH OFFICER/REPS GUIDE TO PROCESSING ET CLAIMS

Dear Colleagues

This briefing is to assist branches in advising and assisting members who are considering taking unfair dismissal/discrimination complaints to an Employment Tribunal. It replaces our previous guidance in LTB 315/2006.

Employment Act 2008

The statutory disciplinary, dismissal and grievance procedures were repealed on 6 April 2009 and replaced with the “ACAS Code of Practice: Disciplinary and grievance procedures.” This means that the three month extension to the time limit for submitting an Employment Tribunal claim where an internal procedure is ongoing has also been repealed and will only apply to cases still governed by the old procedures. The old rules will continue to apply to many Tribunal clams until 4 July 2009 and to some equal pay and redundancy claims until 4 October 2009 (please see attached appendix 1 – Transitional Arrangements).

Under the ACAS Code of Practice, employees must raise their grievance in writing, make reasonable effort to attend any meetings and appeal, otherwise, any award the member receives may be subjected to a reduction of up to 25%. The ET1 can now also be submitted immediately rather than waiting 28 days after the grievance was submitted.

1. Right to go and Union representation

Employees have a right to take a complaint of unfair dismissal or unlawful discrimination and other disputes to a Tribunal, provided they meet the qualifying legal conditions. This does not mean that representatives should encourage them to go to law as an automatic response to a failed appeal. The employment tribunal process can be quite an ordeal, often without any serious prospect of winning or of pressurising managers to ‘do a deal’. Financial compensation can be very limited. Branches and representatives should, therefore, seek advice from headquarters before advising members to go to law, while ensuring that the standard letter is issued to the member (see flowchart). Booklets are available from Citizens Advice Bureaux or other Government agencies. Forms can also be obtained and/or completed online by visiting http://www.employmenttribunals.gov.uk" onclick="window.open(this.href);return false;

However, under the Rules and Conference Policy, the Union is not obliged to support any case unless we consider that it has a reasonable prospect of success i.e. 50% or more. When all the documentation listed in this LTB is received in the Legal Services Department, initial consideration by the authorised Officer will be given. If necessary, we will seek a further assessment after one of our ET Panellists (or lawyers in the more legally complex cases) has seen the member ‘face to face’. Whichever course is decided, the Branch will be given a written decision with reasons if, in our opinion, the case meets our normal criterion for support viz; “it has a 50% or more chance of success at an Employment Tribunal”.

2. Mandatory Procedures

It is important that branch and field officers absorb this guidance. The Tribunals have become far more legalistic and are now like courts. Failure to follow these procedures could create difficulties for you as well as serious and costly legal consequences for the Union. This can involve very large Tribunal awards, legal costs and sometimes bad publicity. When things go wrong due to a failure to follow the procedures it can be embarrassing, pressurised and costly. So the advice contained has the authority of the NEC and must be followed by all union representatives handling potential or actual Employment Tribunal applications.

3. Branch and Reps Handling

As Branch Secretary, you are responsible for processing request for assistance from members of your branch. The employment tribunal system can also be accessed independently by members and their advisers. Our advice is that all branches should have one officer dedicated to these issues and a procedure to facilitate efficient and timely processing of the paperwork to this Department. We would be happy to discuss the practicalities of this advice with branches.

4. Tribunal time-scales/pressures

Tribunals are now very pro-active in dealing with employment tribunal claims. Once an ET1 form is lodged, it sets off a chain of events that can lead to initial hearings within weeks. Members should be made aware of this and branch officers need to respond to requests for assistance promptly if not urgently. Where an ET1 has been lodged, a copy should be sent to HQ together with the Branch Consultation Record, with advice on the stage reached in the internal proceedings as well as the external, Tribunal proceedings .

5. Training

These guidelines should be communicated periodically to new and existing representatives, e.g. in induction and training courses arranged by the Education and Training Department. You may also wish to arrange regional or branch courses based on this LTB as previously offered via the Legal Services Department If you have any queries, please let me know.

Please ensure that all Branch Officers and representatives get a copy of this guidance.



Tony Rupa
Head of Legal Services

Eployment tribunal.doc

USEFUL SOURCES OF INFORMATION
CWU Legal Services website http://www.cwu.org" onclick="window.open(this.href);return false;
Legal Services Handbook
BERR website http://www.berr.gov.uk" onclick="window.open(this.href);return false; and booklets
Directgov website: http://www.direct.gov.uk" onclick="window.open(this.href);return false;
LRD booklets http://www.lrd.org.uk" onclick="window.open(this.href);return false;
Equality and Human Rights Commission website http://www.equalityhumanrights.com" onclick="window.open(this.href);return false;
ACAS website: http://www.acas.org.uk" onclick="window.open(this.href);return false;