Legal systems

There are separate employment tribunals for Scotland and for England and Wales, because Scots civil law differs dramatically from English civil law.

A claim may not be presented in Scotland for proceedings in England and Wales, and vice versa, but it is possible to transfer proceedings between the two jurisdictions in certain circumstances.^[1]

Statutory remit

Employment tribunals may hear claims brought within three months for issues related to "statutory" breaches only. The statutory breaches are listed below:^[3]

Action can also be brought under a number of other statutes:

• the Working Time Regulations for issues related to rest breaks, rest periods, detriments for failure to work in excess of the maximum time etc.
• the National Minimum Wage Act 1998
• the Employment Relations Act 1999, for failing to allow workers to be accompanied at disciplinary or grievance hearings
• the Transfer of Undertakings (Protection of Employment) Regulations 2006

Formality

Tribunals are intended to be more informal than courts. Claims are brought and defended by people with professional legal representation, lay representation (eg by a friend or relative), or no representation at all. People are free to represent themselves if they wish, and they may be accompanied if they wish.

The rules of procedure used by Employment Tribunals are less formal than the rules followed in the courts, and are designed to give flexibility in ensuring that each case is determined fairly and justly. Where appropriate, Employment Tribunals can adjust their procedures to ensure effective participation by people with a disability or a vulnerability.

There is no special court dress or complex civil procedure rules as at the County Court.^[5]

Reasons for decisions

The overriding rule on the provision of reasons for a tribunal's decision is set out in these terms:

The decision of a Tribunal shall be recorded in a document signed by the Chairman which shall contain the reasons for the decision.^[6]

Successive rulings in UCATT v Brain [1981] I.C.R. 542, Alexander Machinery (Dudley) Ltd v Crabtree [1974] I.C.R. 120, Varndell v Kearney & Trecker Marwin Ltd. [1983 I.C.R. 683] and Martin v Glynwed Distribution provide clarification of the rule and its application in the Industrial and Employment Tribunals. In Martin it was noted that an explanation of the facts is useful but not obligatory, but "as far as the questions of law are concerned, the reasons should show expressly or by implication what were the questions to which the industrial tribunal addressed its mind and why it reached the conclusions which it did".^[7]

Reconsideration and appeals

The Rules of Procedure make provision for a judgment to be reconsidered if it is in the interests of justice to do so, where an application is made in writing within 14 days of the date of the written Judgment. Upon reconsideration a judgment may be confirmed, varied (ie changed) or revoked.

Applications with no reasonable prospect of success are rejected on paper. Those with a reasonable prospect are generally determined at a reconsideration hearing.

Failing this, decisions can be appealed to the Employment Appeal Tribunal.^[8]

Prevalence of unpaid awards

The Taylor Review referred to "widespread concerns about the number of employment tribunal awards that go unpaid" and reported that government-commissioned research undertaken in 2013 had shown that, following enforcement action taken by an individual, 34% of employment tribunal awards in England and Wales and 46% in Scotland remained unpaid.^[11] In December 2018 the Department for Business, Energy and Industrial Strategy introduced a "naming scheme" to exert reputational pressure on employers who fail to pay awards. Only awards of £200 or more are affected by the scheme.^[9]

Fees

In July 2013 the system was changed so that a fee of £160 or £250 must be paid by the individual when starting their employment tribunal^[3] and a further payment of £230 or £950 for the actual hearing.^[12]

This led to a sharp decline in the number of tribunal cases in the following 12 months.^[13]

In July 2017, the Supreme Court ruled that the employment tribunal fees were unlawful.^[5] The Ministry of Justice subsequently announced it would cease to charge the fees and refund those already paid.^[8]

In January 2024, the Ministry of Justice launched a consultation on the reintroduction of fees for both the employment tribunal and the employment appeal tribunal. It proposed a single fee of £55 to issue a claim at the employment tribunal, but no hearing fee. Similarly, an appellant at the employment appeal tribunal would incur a £55 fee, and no hearing fee. The consultation referred to an intended implementation date of November 2024.^[14]