Practical Law

In the post-fees era, there is anecdotal evidence of a couple of emergent trends in employment tribunal litigation. Firstly, there is speculation that some hearings are being listed for longer than they would have been in the pre-fees era. Secondly, reductions in the number of panel members due to funding cuts may now be leading to considerable delays, in the order of months rather than weeks, in the listing of long discrimination and whistleblowing cases in certain tribunals. Whether these myths are in fact true and whether they are due to the sharp drop in claims remains to be established. However, while the rumour mill is turning, there will be some clients who will be interested in taking their dispute out of the tribunal in order to save cost, time and achieve a swifter resolution.

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“Mr Anderson, you’re obviously out of time!” Not a line from “The Matrix”, but a treasured memory from a recent appearance in the East London employment tribunal. This is just one example of times when I have had to fight over the proper application of the extension of time provisions where there has been early conciliation (EC) (section 207B of the Employment Rights Act 1996). Continue reading →

Most, though not all, hearings which take place at the employment tribunal are open to the public. Accordingly, a member of the press is entitled to sit in and observe such proceedings in the same way as any other member of the public. A party’s first contact with the press may not be the more austere environment of a hearing, but outside the hearing venue or in the corridor. No one is obliged to speak to a member of the press and any attempt to harass a party or witness into making a comment may amount to a contempt. In the majority of cases, a polite but firm “I am afraid I do not wish to make any comment” should suffice. Continue reading →

It was recently common for tribunals to tell the parties the afternoon before the first day of a final hearing that the hearing would not go ahead because there were insufficient judicial resources. Alternatively, the parties (and their witnesses) would arrive on the first day and have to wait until later that day to find out whether their case would go ahead or be relisted to some date months later. Parties found this frustrating, and the consequences in terms of costs and delay could be significant. Fortunately, this now seems to happen less often. Continue reading →

Since the introduction of the 2013 Rules of Procedure I have found that employment tribunals are more prepared to conduct hearings by electronic communication; in particular by telephone. This extends not just to case management (for which telephone hearings have always been a frequent occurrence) but also to the determination of preliminary issues. There have been several occasions in the past 12 months where I have had to give detailed legal submissions over the telephone with nothing but the handset to keep me company.
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My recent experience in employment tribunals up and down the country has reinforced the importance of a well-drafted costs warning letter in persuading a tribunal to award costs to the winning party. I have found employment judges particularly receptive to costs applications where a costs warning letter:

Following the introduction of the new ET Rules, my recent experience of the London South employment tribunal is that they have developed a practice of sending out certain pro forma letters in advance of a preliminary hearing. There appear to be two types of pro forma letter: