Welcome to the Employment Team's newsletter. We hope that this will serve as a useful reference point for dealing with employment claims. In this issue we are focusing on the first stages in a Tribunal case
What should you do if a client asks you for employment advice while they - or their employee - are still in employment?
The employee may be in the process of being disciplined, or they may have raised a grievance which is currently being dealt with. An Employment Tribunal claim might soon be made, and it is important to start maximising your client's chances of success straightaway.
The key point, for both employees and employers, is the new ACAS Code of Practice. Since April 2009, any grievance, disciplinary or dismissal procedure (other than redundancy, and the non-renewal of fixed-term contracts) has to be conducted in accordance with the Code.
The Introduction to the Code deals with the general principles of fairness, transparency and reasonableness. Paragraphs 5 to 30 deal with disciplinary procedures, and paragraphs 31 to 45 deal with grievance procedures.
There are many details in the Code that the employer (and the employee) should comply with, and they are not the same as the old statutory disciplinary and grievance procedures. One important example is that paragraph 21 of the Code does not require employers to put the employee's right of appeal in writing. Simply telling the employee about their right of appeal is probably enough.
Even so, particularly if you are advising an employer, the golden rule of evidence continues to apply: to save time and expense later on, put everything in writing!
The ACAS Code of Practice is still being litigated at first instance, and it may be some time before the Court of Appeal provides full guidance on how rigidly the Tribunals should construe it.
Until then, employees who are involved in an internal grievance or disciplinary procedure should read the Code, and ask their employer to implement the steps that it sets out, and employers should be ready and willing to do so.
Although Employment Tribunal rules are more flexible than the Civil Procedure Rules when it comes to pleading your client's case, some types of claim cause particular problems for employees.
It is usually straightforward to set out the full particulars of how and why an employee was dismissed.
But it is often much more difficult to give full particulars of the chain of events leading up to a discriminatory dismissal or constructive dismissal.
In those types of claims, and in non-dismissal discrimination claims too, it is critical that the ET1 sets out all the incidents that affected the employee: every act of discrimination, every act of breach of contract, every relevant event should be particularised.
There are a number of advantages to lodging a full, thorough ET1:
It avoids the risk and expense of arguments about whether the employee should be able to add new allegations, often after time limits have passed.
Just as importantly, it shows the Tribunal at trial that your client has a persuasive case on all his or her allegations: there will be no easy cross-examination points about your client believing that an incident was so minor, they did not even bother including it in their ET1
On a practical note, having a fully particularised ET1 will make an excellent starting point for the preparation of your client's witness statement.
A final thought about ET1s in discrimination claims: does your client's story, as he or she has told it to you, include any complaint about the way your client was treated when the employer found out they were contemplating bringing Tribunal proceedings, or doing any other protected act? If so, your client may also have grounds for pleading a victimisation claim.
After answering the employee's factual claim as fully as possible, the most important thing about the employer's ET3 is to make sure that it raises all the technical, jurisdictional, and alternative arguments that can be made about the employee's case.
Taking the most common example, in an unfair dismissal claim, there may be arguments about:
length of service
the claimantís status as an employee
the real reason for the claimantís dismissal (e.g. in redundancy cases, the employer may argue that there was some other substantial reason for dismissal, even if redundancy is disproved)
the reduction of any compensatory award, due to the claimantís contributory fault
the reduction of any compensatory award, due to the claimantís failure to comply with the ACAS Code of Practice
When advising any client before the start of any Employment Tribunal proceedings, it is vital to remind them that the new ACAS Code of Practice now governs how they should deal with their grievance or disciplinary matter.
Once the employee is ready to lodge their ET1, that ET1 should set out their case in full, including all the incidents they will rely upon in their claim.
Equally, the employer's ET3 should, like a Defence in civil proceedings, respond to each of the allegations raised in the ET1 and include all the technical and alternative arguments the employer will raise against the claim.
Although great care and attention has been taken in the preparation of this material, and the contents are believed to be correct, Cobden House Chambers and the barristers who practise there will not be held responsible for any errors contained herein, or any consequences arising from the use of this material. In particular, no liability can be accepted where any person acts in reliance on these notes or the views expressed in this newsletter.