| Non-motoring > Employment Tribunal - what can I expect? | Miscellaneous |
| Thread Author: Badwolf | Replies: 21 |
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New Wed 4 Aug 10 20:39
Employment Tribunal - what can I expect? - Badwolf
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Hello all, I'm the claimant in an unfair dismissal case and on Monday there is a hearing at the Employment Tribunal in Liverpool. It's a hearing to decide whether my former employers should be alllowed to take any further part in proceedings as they have failed to file papers on time. Does anybody have any recent experience with Employment Tribunals? Should the judge be treated with the same regard as one would a Judge in a 'normal' court? Thanks in advance. |
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New Wed 4 Aug 10 20:46
Employment Tribunal - what can I expect? - TheManWithNoName
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I attended a Valuation Tribunal this week. I've no idea how similar they are but the three members of the panel were normal, everyday men with normal day jobs. It was very informal and there was no tugging of forelocks and calling them yer honour or anything like that. There is still a protocol and they advised me of how the proceedings would begin and how it would conclude and I was advised as to when I would have my chance to 'say my piece'. There was also a clerk there who advises the bench on any technical issue so there maybe someone similar at the ET. Just be natural, truthful and to the point. Best of luck |
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New Wed 4 Aug 10 20:48
Employment Tribunal - what can I expect? - Zero
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| you can expect your ex employer to be given another chance to file the papers. |
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New Wed 4 Aug 10 20:53
Employment Tribunal - what can I expect? - Fenlander
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All explained here Badwolf... www.employmenttribunals.gov.uk/FormsGuidance/theHearing.htm A while back my good lady took a major employer to tribunal except they gave in days before the hearing. She was sent a huge amount of info (wonder why you didn't receieve any?) and it appeared to be a relatively friendly process... between her and the tribunal people anyway. Good luck. |
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New Wed 4 Aug 10 20:56
Employment Tribunal - what can I expect? - Badwolf
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Zero - he's already been allowed to file the ET3 (response) form. What really really sticks in my craw is that an Employment Tribunal judge has already ruled that I was dismissed unfairly and my arguments are well-founded. That, however, appears to count for nowt and will be revoked if my ex-employer is allowed another chance. Hardly fair. Fenlander - many thanks for that, much appreciated. Last edited by: Badwolf on Wed 4 Aug 10 at 20:58
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New Wed 4 Aug 10 21:02
Employment Tribunal - what can I expect? - Zero
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>> Zero - he's already been allowed to file the ET3 (response) form. Yeah but they dont like making judgments that can be easily appealed. |
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New Wed 4 Aug 10 20:57
Employment Tribunal - what can I expect? - Iffy
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Badwolf, I've been to a couple of these over the years. They are informal in the sense they are usually heard in a room with desks set out on one level, rather than a court with it's dock, witness box, etc. The 'judge' is properly a tribunal chairman - he will be sitting as part of a panel of three, I expect. Best form of address is 'polite formal' - calling him 'sir' will do, but be guided by what else you hear. Other than that, turn up smartly dressed, on time, have your case in order, state it plainly if asked, but don't make any bold statements you can't substantiate and, at all costs, refrain from making intemperate allegations and name calling. This sounds like a preliminary hearing in which you will likely take little part, but you need to make it plain to the clerk/usher that you wish to be kept informed of what happens, as it happens, during the day. One last tip - tribunals, like courts but to a lesser extent, are a comedy of manners. The more you say 'please' and 'thank you' the more you will get. |
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New Wed 4 Aug 10 21:38
Employment Tribunal - what can I expect? - teabelly
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| No idea. But check out the moneysaving expert forum in the employment section. There are a few good people on there that know a lot about tribunals. SarEl is an employment barrister from the North West on there and is the best person to listen to. |
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New Thu 5 Aug 10 08:20
Employment Tribunal - what can I expect? - Cliff Pope
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There are 2 procedures - the full tribunal, and a pre-hearing consisting of the chairman sitting alone. The purpose of the latter is to decide whether there is sufficient evidence to justify the full hearing going ahead. It sounds as if the purpose of your hearing is simply to decide whether the employer should be allowed to continue in the case, or lose by default. I have seen this from the other side. An employee failed to submit any evidence before the deadline. The chairman held a pre-hearing, sitting alone, and saw merely written submissions - no one was required to attend. He decided to give the employee a second chance, and fixed a date for the full hearing, but the employee withdrew his case the day before. Some people indulge in brinkmanship just to see how far the other side will go. I found it was worth phoning the tribunal secretary and finding out exactly the matters under consideration, and getting advice on what to submit, when, and whether I needed to attend the pre-hearing or not. It is well worth keeping on good terms with the tribunal chairman. I got the strong hint from the secretary that the chairman was very irritated by the employee's repeated dithering and failure to produce submissions on time, and was minded to sling the case out. Obviously the employee got the same hint so took a wise decision. |
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New Thu 5 Aug 10 09:57
Employment Tribunal - what can I expect? - Badwolf
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ifithelps - thank you :-) Cliff, thank you very much for that extremely helpful reply. I've rung the ET office and they tell me that I'm more than welcome to attend the hearing to put my views across. I can't really see how my ex-employer can be let back in as he's consistently failed to take the matter seriously and to return paperwork on time. However, as we all know, funny things happen in courts. The really annoying thing, as I have already said, is that I already have a Default Judgement in my favour stating that I was unfairly dismissed and that my claim succeeds, issued precisely because my former employer couldn't get his act together and respond in the time allowed. Now he's squawking about not being given a fair hearing, that Judgement seems to count for nothing. Ruddy aggravating. I wouldn't mind but in a letter to me, he stated 'although I respect your right to appeal, it will not make any difference to my decision' so I don't think that he can moan about not being allowed a fair hearing... Tsk. |
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New Thu 5 Aug 10 10:11
Employment Tribunal - what can I expect? - Iffy
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...I can't really see how my ex-employer can be let back in as he's consistently failed to take the matter seriously and to return paperwork on time... Tribunals don't like not being taken seriously, whichever side is doing it. Your default judgment sounds good. It seems to me all you need to do is keep doing the right thing. The more polite, patient and understanding you are, the worse your former employer will look. There is a note of frustration in your posts - you must keep the lid on that at the hearing. Outline your position, put it firmly, but don't tip over into hyperbole or name calling - it's easy to do in the heat of battle. You're one-nil up with ten minutes to go, concentrate, keep playing the game, don't do anything daft and you'll get the result you seek. |
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New Thu 5 Aug 10 10:16
Employment Tribunal - what can I expect? - Badwolf
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You really do live up to your forum name, don't you? :-) Thank you so much for that - very calming and reassuring. I am very good at being a seething mass of anger inside and yet calm, polite and chilled on the outside - I just come on internet forums and rant! I'll let you know how it goes on Monday. Thanks again. |
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New Thu 5 Aug 10 11:59
Employment Tribunal - what can I expect? - GD People
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Your employer is trying to have the default overturned. I've copied an old article I have on doing just that - it's quite old but may help explain what they're trying to do and how to counter it. A party faced with a default judgment may apply to the tribunal to have the judgment varied or revoked under rule 33(1). Most of the cases in this area have involved respondents, as opposed to claimants, seeking the review of default judgments . Rule 33(2) provides that a respondent’s application for review must explain why neither the response nor an application to extend time for service of the response were presented within the 28 days available and include the respondent’s proposed response and an application for extension of time to serve it. Rule 33(5) provides that a chairman may revoke or vary all or part of a default judgment if the respondent has a reasonable prospect of successfully responding to the claim or part of it. Rule 33(6) states that the chairman must , when considering an application for review , have regard to whether the respondent had a ‘good reason’ for failing to present its response in time. Grounds for revoking a default judgment Rule 33 does not expressly state that the chairman must give precedence to either of the above considerations set out in rules 33(5) and (6). In Pendragon t/a CD Bramall Bradford v Copus 2005 ICR 1671 (Brief 790) the tribunal and then the EAT grappled with the question of how these rules should be reconciled. In this case P plc was out of time filing a response to C’s employment tribunal claim, and the tribunal issued a default judgment in C’s favour. P plc applied to the tribunal, seeking a revocation of the judgment in accordance with rule 33, and an extension of time for it to submit its response. The tribunal chairman concluded that, when weighing up whether there were grounds to revoke a default judgment , the reason for the respondent’s default should be treated ‘as substantially more important than the reasonable prospect of success issue’. The EAT disagreed. Burton P, sitting alone, referred for guidance to Kwik Save Stores Ltd v Swain and ors 1997 ICR 49 - the leading case on extending time for a notice of appearance under the previous tribunal rules. In that case the EAT clarified that ‘the process of exercising a discretion involves taking into account all relevant factors, weighing and balancing them one against the other and reaching a conclusion which is objectively justified on the grounds of reason and justice’. Applying this principle to the facts in Pendragon, Burton P held that when exercising a discretion under rule 33 a chairman should consider all the relevant factors. These included the employer’s explanation of why the response was not presented in time and an extension of time was therefore required; the balance of prejudice; and the merits of the defence. He concluded that the wording of rule 33 did not make the absence of a good reason for the employer’s failure determinative, and he revoked the default judgment and granted the employer an extension of time in which to present its response. Another case in which the EAT followed Pendragon is Pestle and Mortar v Turner EAT 0652/05 in which the EAT set aside a default judgment . In this case the deadline for entering the response was 26 April 2005. The day before, the employers’ solicitors posted the response first class to the tribunal. It arrived two days late on 28 April. The response was also faxed, but instead of being faxed to the tribunal it was sent to Acas in error. The tribunal entered judgment in default . Although the EAT agreed with the tribunal that the employer had not established a good reason for failing to enter a response because a document sent by first-class post is deemed by virtue of the Civil Procedure Rules to be served on the second day after it was posted (in this case that would have been 27 April, a day late), showing a good reason was just one of the many factors that should be taken into account. Those other factors were the prejudice suffered by the respondent, that there was an attempt to fax the response form within time, and that the actual delay was only two days. Reason for late presentation. While the decision in Pendragon clarifies that the reason for a respondent’s default is not the only factor which will persuade a tribunal to revoke a default judgment , that reason will still form an important part of the decision-making process. Two first-instance decisions shed light on what a tribunal might consider to be a ‘good reason’. In Small v WM Morrisons Supermarkets Plc ET Case No.2700139/05 the employer did not receive the claim form sent to it by the tribunal but had been notified of the claim via a letter from Acas. The chairman concluded that the employer was on notice of the claim and should have made enquiries with the tribunal. Its failure to do so meant that it could not show that it had a good reason for failing to present its response in time and a default judgment against it was upheld. Note, however, that this decision was reached before the EAT handed down its decision in Pendragon and the chairman in this case did not go on to consider the employer’s prospects of defending the claim. In Humphrey v London Borough of Tower Hamlets ET Case No.3203402/04 the employer applied for an extension of time to serve its response when it realised that it would not be able to serve it on time because of the Christmas holiday period and sickness absence of key staff. Its extension application did not arrive at the tribunal because it was incorrectly addressed. The tribunal issued a default judgment . On review , the chairman concluded that had the respondent’s extension application been received in time, it would have been just and equitable to have granted an extension. Taking this into account the chairman concluded that he did not need to go on and decide whether the employer had a ‘good reason’ for the failure to present its response in time. However, in an obiter comment he did state that it was ‘unsatisfactory’ for a local authority to be dependant on the presence of one person to defend a claim, and also that it was ‘unfortunate’ that the employer had not set up a system to check whether the extension application had been granted. This made it ‘debatable’ that the employer would have had a ‘good reason’ for its default . |
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New Thu 5 Aug 10 12:17
Employment Tribunal - what can I expect? - Badwolf
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| Thank you, GDP. Most useful. Most useful indeed. |
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New Fri 6 Aug 10 09:51
Employment Tribunal - what can I expect? - GD People
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| Very welcome. |
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New Mon 9 Aug 10 14:34
Employment Tribunal - what can I expect? - Badwolf
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Well, I thought I'd pop back and update those who have been kind enough to help. The hearing today went fairly well. The Judge stated that the initial Default Judgement stating that I had been unfairly dismissed would not be revoked and that, after listening to the arguments, he was reluctantly going to allow my ex-employer to defend the Remedy amount. From the short conversation that I had with him and his representative later, it would seem that we are all keen to settle without having to go back to the Tribunal for a further hearing so it now comes down to agreeing an out-of-court settlement. To ACAS and beyond! Thanks again for your input, folks. |
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New Mon 9 Aug 10 14:56
Employment Tribunal - what can I expect? - Tooslow
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That's good, sounds like you're winning, just need to await the final outcome. I've not contributed to this as I know nowt about it but there has been some brilliant input. JH |
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New Mon 9 Aug 10 16:10
Employment Tribunal - what can I expect? - Perky Penguin
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Indeed, very interesting and informed comment. I have just been given 6 month's notice at age 71, from my current job. No come back as I am over 65 but I was recruited to start the employment when I was 66 so it is all a bit puzzling! Still, more time to watch no win-no fee, debt resctructuring, and Michael Parkinson trying to sell me rubbish life insurance adverts on TV. Is there no end to the joy?
Last edited by: Perky Penguin on Mon 9 Aug 10 at 16:11
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New Mon 9 Aug 10 17:38
Employment Tribunal - what can I expect? - teabelly
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| Ageism is illegal now. I thought a compulsory retirement age had been removed?? Worth checking with ACAS or similar just in case.... |
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New Mon 9 Aug 10 18:07
Employment Tribunal - what can I expect? - Zero
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>> Ageism is illegal now. I thought a compulsory retirement age had been removed?? It hasnt. not yet. |
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New Mon 9 Aug 10 19:08
Employment Tribunal - what can I expect? - Iffy
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Badwolf, Nicely done. As you said earlier, in a court or tribunal, you can never be quite sure you won't find yourself on the wrong end of a barmy decision. You might not think you've done a great deal, but equally you haven't ballsed it up either, which can happen. I don't know the mechanics of reaching an agreement - ACAS always puts me in mind of the likes of Arthur Scargill, Len Murray and Joe Gormley. |
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New Mon 9 Aug 10 19:26
Employment Tribunal - what can I expect? - Perky Penguin
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| Zero is correct. This retirement age thing is a problem, GB was telling us that we are living longer so we need to work longer to justify/earn our State pensions. On the other hand my departure has opened a vacancy for someone a lot younger than me who really needs a job! |
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