I will never forget one of the first industrial (now employment) tribunals I sat in on. "What's this all about?" asked the browbeaten chairman, papers in hand, as he stormed into the room. "It's all about who broke wind, sir," said the mousy woman at the rear of the room.
Throughout the next hour a torrid tale unfolded as to how staff at a north Derbyshire pet shop had attended a pub quiz and had had too much to drink, resulting in a punch up. The till assistant was sacked the following day. Two days later and a Sun newspaper splash headline 'Pub Pong Row' and I was hooked for life on attending tribunals to listen to weird and wonderful tales being unravelled, including engineers' shoes being nailed to the shop floor and countless other misdemeanours.
That was a long time ago when I had an eye for a story as opposed to law, but it gave me the incentive to undertake tribunal work and become a solicitor. Today, such tales and the informality of proceedings seem set in the distant past with tribunals now being constantly steeped in procedure, dealing with ever more complex statute, and with representatives' heads constantly stuck in the green bible namely the Butterworths Employment Law Handbook.
Such is the way employment law has developed, with endless legislation constantly winging its way into the aforesaid green book, always with the intention of simplifying the system but often adding to its complexity.
After a recent hearing in Leicester a tribunal chairman apologised to my client saying, "At one time we would have dealt with this case on the back of a postage stamp. You must wonder what this is all about, but this is the way we have to do things these days," referring to the fact that a hopeless claim for alleged non-payment of wages had been dismissed, with the claimant not even bothering to turn up.
Relatively new changes in employment law designed to stem the tide of the ever-rising number of claims being made to tribunal led to the Employment Act 2002 (Dispute Resolution) Regulations 2004. It became effective in October 2004 and set down the minimum statutory requirements on employers when dealing with dismissal and grievance procedures.
Its aim was to ensure that employee and employer talked sensibly together prior to any dismissal becoming effective, and there can be no doubt that it has led to more matters being settled without full tribunal hearings. On this basis it is being claimed that it has had the desired effect, in so much as fewer cases are being taken to full hearing, thereby easing the burden. However, it is still early days, and I have no doubt that we are starting to see more and more cases being brought on procedural irregularities.
If procedure is wrong, the employee has an automatic unfair dismissal and must receive some sort of award. The employer can argue for its reduction based on the fact that the substantive issue - the reason for dismissal - is still right and fair and would have been, notwithstanding the procedural failure. But the employer can no longer get a 100% reduction (Polkey reduction) in this way. The fact is that, once procedure is unfair, we have an unfair dismissal, and the employer is then immediately thrust into mitigating his loss, arguing the correctness of the reason and/or the contributory behaviour of the employee (under s123 Employment Rights Act 1996 the tribunal can still reduce an award by 100% under this regulation). However, tribunals now look to the procedural issues first. If procedure is wrong, for example through failure to advise of appeal, or the letter calling the employee to a disciplinary hearing not considered to be full enough, then we have an unfair dismissal. And if procedure is wrong, it is more difficult for the employer to defend, with an award of some sort likely to be made, so consequently there are more settlements.
The statutory dismissal and disciplinary procedure is to be reviewed towards the end of this year. It will be interesting to see how it is considered to be working in practice. We are told it was never intended to trip up the unwitting employer on technicalities, but clearly it does so.
The emphasis now is for employers to get procedures right, and it is valuable to obtain full, professional advice to avoid the snares. It all seems a long way from those early '80s tribunals I mentioned earlier. Call it progression or whatever, there can be no doubt that employment tribunals are becoming ever more formal. Soon they may cease to be the bastion of the layman and become the domain of full time lawyers.
John Brotherton is employment solicitor, The AP Partnership Ltd, Tel: 01733 891081, E-mail: john@appartnership.co.uk; www.appartnership.co.uk
TRIBUNALS 10 PROCEDURAL TIPS
1. Rely on specialist employment law advice
2. Ensure the employee's file is available with all records
3. Gather all investigation notes
4. Provide copies of the letter calling the employee to disciplinary hearing/warning of redundancy; ensure it is fully comprehensive as to what is alleged against the employee, and ensure there are at least 24 hours or sufficient time for the employee to prepare.
5. Provide comprehensive notes of all meetings informal or formal
6. Ensure letter of dismissal is available and that it mentions right of appeal
7. Provide full record if an appeal was heard
8. Provide a true, honest account of what is alleged to have occurred
9. Keep an open mind to settlement at all times.
10. Do not risk what you cannot afford to lose purely for principle's sake.
