Collyer Bristow’s Employment Team recently hosted a Mock Employment Tribunal. The session was extremely useful and provided attendees with some helpful information and insights into Tribunal proceedings.

The Team would like to offer special thanks to Mark Sutton QC, Adam Ross and Bruno Gil from Old Square Chambers for their assistance in preparing and presenting the Mock Tribunal. They also offer their special thanks to Sean Garden of the ICO and Nick Thornton of Aver for agreeing to step in and be our wing members for the Tribunal panel.

It was a closely fought battle between the Claimant and the Respondent, with the judge ruling in favour of the Claimant that the dismissal was unfair. Although the Claimant was found to have contributed to his dismissal by the Tribunal and there was a 25% reduction in the amount of damages he awarded. It was interesting to note that a number of attendees agreed with the Tribunal in our straw poll, with 9 of the attendees deciding that the dismissal was fair in the first straw poll and only 6 of them deciding the dismissal was fair in the second straw poll, after all of the evidence had been heard.

A number of questions were raised by the audience and we set these out below, together with an outline of Mark Sutton QC’s answers, for your information:

1. Would an employee’s length of service be weighted heavily by the Employment Tribunal, particularly where there is a long length of service?

Although length of service is a consideration, the Judge stated that it should not be elevated too highly. The reasoning for this is that it could be a double edged sword for employees as it could be implied that someone who has 20 years’ service would have a certain amount of wisdom or could be expected to exercise a certain degree of caution in this kind of situation.

2. Is it possible for an employer’s disciplinary policy to provide for a meeting which focuses on salient facts or new information for the appeal, rather than a full re-hearing of the initial disciplinary meeting (as was the case in the mock tribunal today)?

This type of “review” appeal meeting is often set out in company handbooks rather than a full “re-hearing” appeal. An appeal meeting is in the ACAS Code of Practice on Disciplinary Grievance Procedures (the “ACAS Code”) and so it is an essential step for a fair process, however, what the appeal hearing consists of can be changed. Some employers offer a review; to decide if the original decision was reasonable and to pick up on any new developments. This is the minimum standard required for an appeal meeting. More unusually, some employers offer a full re-hearing; effectively a re-run of the disciplinary hearing with a new decision. This approach allows the appeal process to correct any procedural flaws in the first disciplinary hearing, which a simple review would not do.

An important factor to take away from the Mock Tribunal is the importance of having an up-to-date disciplinary policy with which those participating in the disciplinary process are familiar as, in this case, the employer was criticised by the Tribunal for not following its own policy in respect of the appeal hearing which was an argument submitted by the Claimant.

3. Is it unfair for a company policy to state that employees may bring a Trade Union representative or colleague to any disciplinary hearings but not a legal representative?

No. It is a statutory requirement under the Employment Relations Act 1999 that an employee can have a trade union representative or a workplace colleague attend a disciplinary or grievance meeting with them. It is possible to allow legal representatives to attend if an employer agrees, however, it is not a statutory requirement and nor is it necessary for a fair process under the ACAS code. In our experience it is rare in the private sector for legal representatives to be permitted to attend such meetings, but they are seen more often in the public sector (such as the NHS) where the decision may have career consequences and prevent the employee from being able to practise in the future by way of an example, in the case of an NHS consultant.

4. What would be the next stage after this hearing?

There would be a further short hearing in the Employment Tribunal to consider what remedy the employee should be awarded. This would first consider whether the employee should be reinstated or reengaged. This will depend on practicability and is entirely at the Tribunal’s discretion. In practice, reinstatement and reengagement are rarely ordered nowadays – although when the Tribunals were first established in the 1970s, it was seen as the primary remedy.

Most employees receive a financial remedy. This is made up of a basic award (in line with statutory redundancy payments) and a compensatory award (a forward projection of loss from the date of dismissal to the likely time the employee finds a new job). It is at this stage that any deductions are be applied to the award. The judge in this case decided that there would be a 25% deduction for the Claimant’s contributory fault. Other deductions can apply, such as a Polkey deduction, if a dismissal was procedurally unfair, but the Tribunal decides that the Claimant would have ended up being dismissed even if a fair procedure had been followed.

It should be noted that there is a cap on the compensatory award in the Employment Tribunal of £78,962 or one year’s salary – whichever is the lower.

5. Is there a route of appeal from the Employment Tribunal?

Either party can appeal to the Employment Appeal Tribunal. An appeal can be made if the decision made in the lower tribunal was based on grounds that were legally erroneous, or if the decision reached was so bizarre that it is perverse (which the Employment Appeal Tribunal says is a very high threshold).

The Employment Appeal Tribunal generally remits successful appeals back to the Employment Tribunal for a re-hearing, which carries a duplication of costs for both parties and so it is rarely an attractive option.

Points to consider

It is a requirement under section 1 of the Employment Rights Act for employers to have in place, as a minimum, disciplinary and grievance policies. In addition, the ACAS Code sets out the minimum standards to be followed in these situations. Although the Code is not legally binding, failure to follow it can result in an increase or decrease in any compensation awarded by up to 25%.

If your business does not have these policies in place, the Team advise that it adopts them. If you would like the Team’s assistance in preparing or reviewing your existing policies, we would be happy to assist. Also, our Employment Team offers tailored training to HR and management on how to manage disciplinary and grievance processes. If you would like any further information on this training then please do not hesitate to contact us for more information.