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Which issues would you most highlight to someone new to your country?
Although employers are free to agree whatever employment terms they wish with employees, there is a well-developed system of employee protection in place, and many employment claims are subject no cap on the compensation that may be awarded. As such, it is important to obtain advice before dismissing an employee or taking other actions which could give rise to an employee claim.
What do you consider unique to those doing business in your country?
The United Kingdom has a flexible labour market characterised by freedom of contract, underpinned by well-developed statutory employment protections for employees.
Is there any general advice you would give in the employment area?
Emerging issues/hot topics/proposals for reform
Are there any noteworthy proposals for reform in your jurisdiction?
At present, no proposals for wide-ranging reforms exist, other than a general commitment by the government to remove red tape in order to relieve burdens on businesses. However, no specific proposals affect the labour market.
What are the emerging trends in employment law in your jurisdiction?
Emerging trends include a movement to ensure that there is an increased level of female representation at the board level and an increased focus on achieving equal pay for women.
The employment relationship
Country specific laws
What laws and regulations govern the employment relationship?
The Employment Rights Act 1996 is the main piece of legislation governing the employment relationship. The act deals with many issues concerning the employment relationship, including:
- rights to a written statement of employment terms;
- the right not to be unfairly dismissed;
- redundancy rights; and
- rights to a minimum period of notice of termination.
Other key pieces of legislation include:
- the Equality Act 2010 – concerned with discrimination and harassment in respect of protected characteristics;
- the Working Time Regulations 1998 – regulates working time and holidays;
- the National Minimum Wage Act 1998; and
- the Transfer of Undertakings (Protection of Employment) Regulations 2006 – concerned with the transfer of employees in business transfers and in outsourcing transactions.
Who do these cover, including categories of worker?
These pieces of legislation generally cover individuals who provide personal services. They are broadly classified into three categories: employees, workers and self-employed or independent contractors.
Under the Employment Rights Act, an ‘employee’ is defined as "an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment" (Section 2301(1) of the Employment Rights Act 1996).
A ‘worker’ is defined as:
"an individual who has entered into or works under (or, where the employment has ceased, worked under):
- a contract of employment; or
- any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual." (Section 230(3) of the Employment Rights Act 1996)
The definitions vary under the different pieces of legislation; for example, under the Equality Act, the definition of ‘employment’ for discrimination purposes is broad enough to cover employees, workers and some self-employed individuals. The Equality Act protects those who are in or apply for "employment under a contract of employment, a contract of apprenticeship or a contract personally to do work" (Section 83(2) of the Equality Act 2010).
Are there specific rules regarding employee/contractor classification?
Assessing an individual's status as an employee, worker or self-employed contractor is a question of both law and fact. Key factors include the following:
- Personal service – does the individual personally perform work or can they provide a substitute?
- Mutuality of obligation – is there an obligation on the business to offer work and an obligation on the employee to accept and perform that work?
- Control – how much control is exercised by the business over the individual's performance of the work?
- Exclusivity – is the individual permitted to work for other businesses or individuals?
The absence of the above factors is likely to indicate that a worker or self-employed contractor rather than an employee; however, the determination of status is always fact specific.
Must an employment contract be in writing?
Although the employment contract itself need not be in writing, employees who have been employed for one month or more are entitled to a written statement of certain particulars of employment within two months of starting employment. This statement must include:
- the names of the employer and employee;
- the date when employment started;
- details of pay and the interval of payment;
- place and hours of work;
- holiday pay and entitlement; and
- job title or a brief description of the work.
Are any terms implied into employment contracts?
As well as the expressly agreed terms between the parties to an employment contract, a number of terms are implied into the contract by common law or statute. Such implied terms fall into the following categories:
- Terms implied in fact – where the express terms of the contract fail to deal with an issue, a term may be implied in fact. Various tests have been developed in case law to determine whether a term needs to be implied, including:
- the business efficacy test (ie, is the term necessary to give business efficacy to the contract?);
- the officious bystander test (ie, is the term so obvious that it goes without saying?); and
- considering the parties’ conduct after the contract was made.
- Terms implied by law – where the terms are not based on the presumed intention of the parties, but are considered by the law as necessary in a particular type of contract. In employment contracts, the test is whether the term in question is a necessary condition of the employer-employee relationship.
- Terms implied by custom and practice – if a custom or practice is "reasonable, notorious and certain" and is followed "because there is a sense of legal obligation to do so", it will constitute a binding, implied term.
- Terms implied or modified by statute – Parliament introduces certain statutory rights in employment contracts. For example, all contracts are deemed to include an equality clause, which gives the right to parity of terms and conditions between men and women engaged in similar work, work of equal value or work rated as equivalent.
A number of implied obligations are imposed on employees and employers. Employees’ implied obligations include the duty to:
- be loyal;
- obey lawful and reasonable orders;
- exercise reasonable care and skill; and
- give reasonable notice.
Employers’ implied obligations include the duty to:
- pay wages;
- give reasonable notice;
- take reasonable care of the health and safety of employees; and
- provide a suitable working environment.
Are mandatory arbitration/dispute resolution agreements enforceable?
No – mandatory arbitration/dispute resolution agreements are unenforceable on public policy grounds.
How can employers make changes to existing employment agreements?
An employment contract may contain a provision which allows the employer to make changes to the terms and conditions of the contract. However, the basic principle is that an employment contract can be lawfully changed only with both parties’ consent; therefore, any contractual power to make changes will be limited and subject to the employer’s duty to act reasonably when making changes.
Employers can seek to make reasonable changes unilaterally, can request the employee’s consent to the changes or, if the employee does not provide consent, can terminate an existing employment contract and offer re-employment to the individual on the new terms.
Is a distinction drawn between local and foreign workers?
No – provided that the foreign workers are working lawfully in the United Kingdom. Employers are liable for civil penalties if they negligently employ someone who is not entitled to work in the United Kingdom and will commit a criminal offence if they knowingly employ ineligible persons. If an employer carries out checks on certain documents before employing an individual and during employment, they will have a defence against such charges. In addition to checking immigration documents, employers usually include a provision in employment contracts in which employees warrant that they are entitled to work in the United Kingdom.
What are the requirements relating to advertising positions?
Employers can advertise positions through many different mediums, including:
- in newspapers or other publications;
- via email;
- in shop windows; and
- on notice boards.
An employer must not discriminate when advertising positions, either through its arrangements for advertising a position, by not advertising a position or in the content of the advertisement. In addition, employers may not instruct any third party involved in the advertisement of a position (eg, job centres, recruitment agencies and online agencies) to discriminate.
What can employers do with regard to background checks and inquiries in relation to the following:
(a) Criminal records?
Criminal records checks may be carried out subject to certain conditions and requirements, but are usually unnecessary for most employees. They should be requested only where the need to protect the employer's business, customers or clients makes it appropriate. Restrictions apply on who can be asked to disclose spent convictions. For example, in financial services, those who perform regulated roles can be asked to disclose spent convictions.
(b) Medical history?
It is generally unlawful to ask about a job applicant’s health before offering a job. Health checks are permitted only if they are justified by an occupational requirement.
(c) Drug screening?
Drug tests can be carried out in limited circumstances – for instance, where working under the influence of drugs or alcohol could give rise to health and safety considerations (eg, where staff drive or operate machinery) or serious damage to the employer's business. Applicants must consent to the test.
A drug test should be carried out only during employment if it is justified, necessary and proportionate, and with the employee’s consent (although an employer may make withholding consent a disciplinary matter).
(d) Credit checks?
Credit checks can be carried out in limited circumstances, and only where it is relevant to the position for which an applicant has applied. For example, a credit check would likely be appropriate only if the position involves handling cash or accounts or working for a financial institution.
(e) Immigration status?
Employers must request, and individuals must provide, certain original documents to establish their eligibility to undertake the work on offer. The documents that are required depend on whether the person is subject to immigration control. The employer must check the validity of the original documents and be satisfied that the individual is the person named in them and that he or she has the right to work in the United Kingdom. Once an employer is satisfied with the validity of the documents, it must make copies of the relevant pages of the original documents provided in a format that cannot later be altered. These documents must be retained for the duration of the individual's employment and for a further two years after employment has ceased. For certain categories of employee, further checks must be carried out every 12 months.
(f) Social media?
Any media searches undertaken should be necessary, proportionate and transparent. If no justifiable reason for conducting media searches exist, they should not be done.
Wages and working time
Is there a national minimum wage and, if so, what is it?
The national minimum wage applies to all workers over the compulsory school leaving age of 16 years old. National minimum wage rates differ depending on the age of the worker and whether he or she is in training. The current standard adult rate of national minimum wage is £6.50 per hour (October 1 2014 to September 30 2015).
Are there restrictions on working hours?
Under the Working Time Regulations, workers are restricted from working for more than 48 hours per week, on average. The average is normally calculated over a 17-week reference period. However, the regulation permits employers to ask their workers to consent in writing to opt-out of the 48-hour weekly working limit, provided that the workers have the right to cancel their opt-out by giving at least seven days’ notice (and up to a maximum of three months’ notice) at any time.
Hours and overtime
What are the requirements for meal and rest breaks?
Under the Working Time Regulations, workers are generally entitled to a 20-minute break away from their workstation when a day's working time exceeds six hours. They are also entitled to rest periods of 11 hours of uninterrupted rest per day and 24 hours of uninterrupted rest per week (or, at the employer's behest, 48 hours per fortnight).
The Working Time Regulations provide exemptions to these requirements for certain industries (eg, those which use shift work and where continuity of production is required) and for workers who determine their own working hours.
How should overtime be calculated?
Employers may determine the rate at which overtime is paid. A common formulation is for overtime to be paid at time and a half on working days and double time on weekends and bank holidays.
What exemptions are there from overtime?
Is there a minimum paid holiday entitlement?
Under the Working Time Regulations, workers are entitled to a minimum of 5.6 weeks' paid holiday each year. This can include public and bank holidays, of which there are normally eight per year in England and Wales.
What are the rules applicable to final pay and deductions from wages?
Employers can make deductions from wages in limited circumstances. Deductions are permitted if:
- they are required by statute (eg, deductions for income tax);
- the employee has expressly authorised them; or
- they are provided for in the employment contract and the employee has confirmed the terms in writing (ie, by signing the contract).
Payslips given to employees must include details of the amount and purpose of any deductions made from wages.
What payroll and payment records must be maintained?
Pay as you earn is the mechanism under which employers assess and deduct tax and employee national insurance contributions from payments made to employees and under which employers account and report to HM Revenue and Customs (HMRC) on those payments. Since April 2013 employers must provide information to HMRC in real time, on or before the date that payment to an employee is made.
Itemised pay slips must be given to employees at or before the time at which wages are paid, and they must include, among other things, details of gross and net wages.
Discrimination, harassment & family leave
What is the position in relation to:
Employees and job applicants are protected against discrimination on the grounds of age under the Equality Act 2010.
Employees and job applicants are protected against discrimination on the grounds of race under the Equality Act 2010.
Employees and job applicants are protected against discrimination on the grounds of disability under the Equality Act 2010.
Employees and job applicants are protected against discrimination on the grounds of gender under the Equality Act 2010.
(e) Sexual orientation?
Employees and job applicants are protected against discrimination on the grounds of sexual orientation under the Equality Act 2010.
Employees and job applicants are protected against discrimination on the grounds of religion or belief under the Equality Act 2010.
Medical conditions are not a protected characteristic under UK employment law, but some medical conditions may constitute a disability which is a protected characteristic.
Employees and job applicants are protected against discrimination on the grounds of gender reassignment, marriage and civil partnership status and pregnancy and maternity under the Equality Act 2010.
Family and medical leave
What is the position in relation to family and medical leave?
All employees are entitled to 52 weeks' statutory maternity leave, regardless of their length of service. Employees do not have to take all 52 weeks, but they must take two weeks’ compulsory leave immediately following the birth of their child.
Employees taking maternity leave may also be eligible for up to 39 weeks’ statutory maternity pay, depending on their length of service. If an employee does not qualify for statutory maternity pay, she may be eligible for maternity allowance, which is a social security benefit.
Employees on maternity leave are entitled to receive the benefit of all of their contractual terms and conditions of employment, except for remuneration, and are entitled to return to the same or a similar (if it is not reasonably practicable to return to the same) job following their maternity leave.
Employees will be eligible to receive two weeks' paid ordinary paternity leave if they:
- have at least 26 weeks' continuous service with their employer at the end of the 15th week before the expected week of childbirth;
- are the biological father of the child or are married to, or the partner of (including civil partners), the biological parent of the child;
- have or expect to have responsibility for the upbringing of the child; and
- have earnings above a certain level (the lower earnings limit for national insurance contributions is £111 per week).
Employees on paternity leave are entitled to receive the benefit of all of their contractual terms and conditions of employment, except for remuneration, and are entitled to return to the same job.
Employees are eligible for 52 weeks’ statutory adoption leave when adopting a child from the United Kingdom or overseas if they have at least 26 weeks’ continuous service before the beginning of the week when the employee is matched with a child by an adoption agency. Employees taking adoption leave may also be eligible for 39 weeks’ statutory adoption pay.
Employees on adoption leave are entitled to receive the benefit of all of their contractual terms and conditions of employment, except for remuneration, and are entitled to return to the same or a similar (if it is not reasonably practicable to return to the same) job.
Shared parental leave
Eligible parents and adopters may share statutory maternity or adoption leave and statutory maternity pay or statutory adoption pay available to mothers and primary adopters. Except for the first two weeks’ compulsory leave which the mother or primary adopter must take immediately after the birth or placement of the child, maternity or adoption leave and pay can be shared between parents and co-adopters at the same time or separately.
Up to 18 weeks’ unpaid parental leave is available to employees with one year's service who have responsibility for a child and are taking leave to care for that child. Parental leave may be taken for each child up until the child's fifth birthday or, for each disabled child, until the child's 18th birthday.
Time off for dependants
All employees are entitled to reasonable unpaid time off to deal with an emergency involving a dependant (eg, if a dependant falls ill or is injured, if care arrangements break down or to arrange or attend a dependant's funeral).
Employees who are unable to work due to illness or injury for a period of four or more consecutive days are entitled to receive statutory sick pay, subject to certain qualifications. Statutory sick pay is available for up to 28 weeks during any period or series of linked periods of incapacity.
What is the position in relation to harassment?
Harassment is a form of unlawful discrimination and is prohibited if it relates to any of the characteristics protected by the Equality Act 2010, except for those which relate to marital or civil partnership status and pregnancy or maternity.
An employer will be liable for harassment if it engages in unwanted conduct related to a protected characteristic that has either the purpose or effect of violating a worker's dignity or creates an offensive, intimidating, degrading, humiliating or hostile environment. Although employers are not specifically liable for harassment of their employees by third parties, their reaction or inaction could amount to harassment.
What is the position in relation to whistleblowing?
Whistleblowers are protected under legislation introduced into the Employment Rights Act 1996 by the Public Interest Disclosure Act 1998. There are two levels of protection for whistleblowers. Workers who make a protected disclosure have the right not to be subjected to a detriment and not to be dismissed because they made a protected disclosure, provided that the disclosure is made in the public interest.
The definition of ‘worker’ includes employees and a wide range of other types of individual.
There is no qualifying period of service before a worker (or an employee in the case of a dismissal) can bring a claim and there is no financial cap on compensation in whistleblowing claims. Employment tribunals can reduce any compensation awarded by up to 25% if it finds that the protected disclosure has not been made in good faith.
Privacy in the workplace
Privacy and monitoring
What are employees’ rights with regard to privacy and monitoring?
Employees’ rights to privacy and employers’ rights to monitor their employees are broadly governed by the European Convention on Human Rights (incorporated into UK law by the Human Rights Act 1998 and the Data Protection Act 1998).
Individuals have a right to privacy under the Human Rights Act, which includes a right to some degree of privacy in the workplace. Employers must therefore always act reasonably when monitoring their employees’ use of emails, telephones and the Internet, and should have an IT policy in place which makes it clear that employees may be monitored so that their expectation to privacy in the workplace is reduced.
The Data Protection Act must also be considered when monitoring employees’ emails, telephones and internet usage, since monitoring will amount to the processing of personal data. Employers must comply with the eight data protection principles of the Data Protection Act. For example, employers must process personal data fairly and lawfully (this will require employers to provide employees with detailed information about any monitoring). In addition, personal data must be adequate, relevant and not excessive for the purposes for which it is processed (this means that employers must act proportionately when monitoring activity).
To what extent can employers regulate off-duty conduct?
Most employment contracts will contain express terms in addition to implied terms that relate to an employee’s conduct during the whole of his or her employment period. Although these are unlikely to relate specifically to an employee’s off-duty conduct, they will encompass an employee’s conduct at any time during employment, which may include time when the employee is not in the workplace (eg, the duty to serve the employer with good faith and fidelity, not to disrupt the employer’s business and not to engage in conduct which may bring the employer’s business into disrepute).
Are there rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?
No specific rules on social media in the employment context exist; however, most employers implement a social media policy in the workplace to regulate the use of social media by their employees. Some employers ban the use of social media in the workplace and others limit and regulate the use of social media by employees.
Trade secrets and restrictive covenants
Who owns IP rights created by employees during the course of their employment?
Employers own the rights to all materials and inventions created during the course of an employee's employment.
What types of restrictive covenants are recognised and enforceable?
The general rule on restrictive covenants is that all contractual restraints on a former employee's freedom to work are void and unenforceable as they are considered a restraint of trade and contrary to public policy, unless the employer can show that the covenants protect a legitimate business interest and go no further than is reasonably necessary to protect that legitimate interest. In determining whether a particular covenant is reasonable, the courts will, among other things, look at the length and scope of the restriction.
The types of restrictive covenant that are commonly used by employers are:
- confidentiality provisions (prohibiting the use of confidential information);
- non-competition restrictions (prohibiting the former employee from working in a competing business);
- non-solicitation covenants (prohibiting the former employee from soliciting customers or other business connections of the employer); and
- non-dealing covenants (prohibiting the former employee from dealing with customers or other business connections of the employer).
Are there any special rules on non-competes for particular classes of employee?
No special rules on non-compete restrictions for particular classes of employee exist. However, non-compete restrictions are traditionally the hardest restrictive covenants to enforce. Since employees are restricted by law from disclosing confidential information amounting to a trade secret after termination – as well as often being subject to express confidentiality provisions – any additional restrictions on their activities after termination may be viewed as unnecessary. As such, non-compete restrictions should be carefully considered for each employee and tailored, among other things, to their level of seniority and length of service. In addition to the length of the restriction, the geographical extent of the restriction should also be considered.
Discipline and grievance procedures
Are there specific laws on the procedures employers must follow with regard to discipline and grievance procedures?
Employment contracts or written statements of terms and conditions of employment (which employers must provide to employees) must contain details of the employer's disciplinary rules and procedures and of the route that an employee can take to raise a grievance. The disciplinary and grievance procedures should comply with the Advisory, Conciliation and Arbitration Service’s (ACAS’s) Code of Practice on Disciplinary and Grievance Procedures, which sets out the minimum standards of good practice for employers and employees.
If an employee's disciplinary or grievance leads to a successful claim in an employment tribunal, the tribunal can penalise either party for failing to follow the ACAS code by increasing or decreasing the employee's compensation by up to 25%.
Unions and layoffs
Is your country (or a particular area) known to be heavily unionised?
Yes – although the influence of trade unions is decreasing and, in practice, most employers are non-unionised.
What are the rules on trade union recognition?
An independent trade union that wishes to be recognised as entitled to conduct collective bargaining on behalf of a group of workers (referred to as the bargaining unit) will usually seek recognition by negotiation with the employer in question. However, if an agreement cannot be reached and the employer does not recognise the trade union voluntarily, the trade union can follow a statutory procedure to gain recognition.
The recognition process involves an application to the Central Arbitration Committee (CAC), which must demonstrate that:
- the trade union has first made a valid request to the employer;
- the majority of the workers in the appropriate bargaining unit support the trade union (usually demonstrated through a ballot or membership levels of the union); and
- at least 10% of the bargaining union are already union members.
The CAC will then consider the application and evidence from both the trade union and employer before making a decision. The CAC will issue a declaration which states either that the trade union is recognised and entitled to conduct collective bargaining on behalf of workers in the bargaining unit or that the application has been rejected and the union is not recognised.
What are the rules on collective bargaining?
An employer and a recognised trade union may try to agree to a method of collective bargaining. If they are unable to do so, they may apply to the Central Arbitration Committee (CAC) to specify one. The CAC will seek to get the parties to agree to a method of collective bargaining. If no agreement is reached, the CAC will specify the method, considering the specified method as set out in the Trade Union Recognition (Method of Collective Bargaining) Order 2000. If the CAC specifies a method of collective bargaining, the parties must also consider the various codes of practice from the Advisory, Conciliation and Arbitration Service which relate to trade union activities and collective bargaining.
Are employers required to give notice of termination?
Employers must provide notice of termination. The required notice period is usually set out as an express term in the employment contract; however, where no written employment contract or express term dealing with notice in the written contract exists, there will be an implied term to give reasonable notice.
Employees are entitled to a statutory minimum notice period of one week after they have been employed for more than one month but less than two years. After two years of employment, employees are entitled to an additional week's notice for each complete year of service, up to a maximum of 12 weeks.
Where the contractual notice period exceeds the statutory minimum, the contractual period will prevail.
What are the rules that govern redundancy procedures?
For a redundancy dismissal to be fair, the employer must establish that there is a genuine redundancy situation and that it acted reasonably in treating the situation as a sufficient reason to justify dismissal. Acting reasonably includes the requirement to follow a fair and reasonable redundancy procedure.
A fair and reasonable procedure will depend on the circumstances of each case; however, it usually involves:
- making a fair assessment of which roles are at risk of redundancy;
- using a fair and objective method of selecting which individuals are to be put at risk of redundancy; and
- consulting with the affected individuals about the proposed redundancy, the selection process and any potential alternatives to redundancy (eg, alternative roles within the employer's organisation).
Are there particular rules for collective redundancies/mass layoffs?
Where 20 or more employees are being made redundant over a period of 90 days or less, an employer has a duty (under the Trade Union and Labour Relations (Consolidation) Act 1992) to inform and consult appropriate employee representatives and notify the secretary of state.
Whenever there is an obligation to consult collectively, the employer must also ensure that it has followed a fair procedure in relation to individuals – including consulting with them properly – in order to minimise unfair dismissal claims.
What protections do employees have on dismissal?
Employees are protected against wrongful and unfair dismissal.
An employee may bring a claim for wrongful dismissal if his or her employer terminates the employment contract in breach of its terms (eg, without giving the notice period specified in the contract).
Employees who have been employed continuously with the same employer for two years also have the right not be dismissed unfairly. A dismissal will be considered unfair, unless the employer can establish that the reason or principal reason for the dismissal was potentially fair and that it acted reasonably in treating that reason as sufficient to justify dismissal (this involves the dismissal being both procedurally and substantively fair).
There are five potentially fair statutory reasons for dismissal under the Employment Rights Act 1996:
- breach of a statutory restriction; and
- some other substantial reason (eg, refusal to accept changes to terms and conditions of employment or a breakdown in trust and confidence).
Employees who do not have two years' continuous service with their employer can bring an automatic unfair dismissal claim in certain circumstances. For example, where the dismissal relates to a protected disclosure made by the employee (eg, whistleblowing) or his or her membership in a trade union.
Jurisdiction and procedure
Which tribunals or courts have jurisdiction to hear complaints?
Employment tribunals hear employment disputes. Some breaches of employment contract claims may also be heard by a county court or the High Court (eg, applications for an injunction to prevent breaches of restrictive covenants are made in the High Court).
What is the procedure and typical timescale?
Before bringing a claim before the employment tribunal, a claimant must apply to the Advisory, Conciliation and Arbitration Service (ACAS) for early conciliation of the claim. ACAS will discuss the claim with the claimant and respondent to establish if there are any prospects of settling the claim. If it is not possible to settle the claim via early conciliation, the claimant must use the standard ET1 Form to present its claim to the employment tribunal within the relevant time limit. Since 2013 all claimants must either pay a fee or submit a fee remission application before their claim will be accepted by the tribunal. Once the claim has been accepted, a copy will be sent to the respondent, which has 28 days to respond.
Once the tribunal accepts the response, the case will be passed to an employment judge for an initial sift stage. At this stage, the tribunal will consider if the case should continue or be struck out, either in full or in part (eg, because it has no reasonable prospects of success).
Following the sift stage, the tribunal will issue orders and directions to the parties for the management of the case, including a timetable for the parties to follow to prepare for the final hearing.
Each party to a tribunal claim is under a duty to disclose to the other party and the tribunal all documents in their possession or control that are relevant to the issues to be determined in the proceedings, whether those documents assist their case or the other party's case. Parties typically prepare a chronological list of the relevant documents in their possession or control. The lists are simultaneously exchanged between the parties, which then request copies of any documents for which they do not have copies.
In most cases (although not in Scotland), tribunals will direct the parties to prepare written witness statements setting out the evidence each witness will give at the final hearing. The written statements are simultaneously exchanged between the parties in advance of the hearing.
Preliminary (interim) hearings may be held at any time before the full hearing to discuss administrative issues or to determine preliminary issues, such as whether a strike out of parts of the claim should be made.
The full hearing is usually held in an open tribunal in front of one legally trained judge and two lay members. Judgments will be given either orally at the end of the final hearing or in writing and sent to the parties or their representatives.
The typical timeline for an employment tribunal claim – from issuance to judgment – is around one year.
What is the route for appeals?
A party can appeal an employment tribunal decision only on points of law. Appeals are made before the Employment Appeals Tribunal, then the Court of Appeal and ultimately the Supreme Court. Permission to appeal is required at each stage.