UCU Guide to Employment Tribunals

Transcription

1 UCU Guide to Employment Tribunals September 2015 This guide has been prepared to alk through the tribunal process. Please read it carefully and keep it to hand as you may be referred to it during the progress of your claim. INTRODUCTION UCU alays aims to resolve orkplace disputes at the loest level and ith minimum interference from layers and the legal system. But sometimes a dispute cannot be resolved ith the employer and it may be that invoking legal rights before the courts and employment tribunals is required. For those ho have had no previous first-hand experience of being in court, the process ill be unfamiliar and potentially unsettling. So this guide has been prepared to alk through the tribunal process. Please read it carefully and keep it to hand as you may be referred to it during the progress of your claim (if you bring one). In this guide e ill provide: a general overvie of employment tribunal procedure information about the disclosure process, including your duty to preserve documents attending a hearing and giving evidence information about costs a brief description of alternative resolution methods. It deals ith the main procedural steps in a typical case. Hoever, it is not exhaustive and there are many issues that may arise during the course of your case. If applicable the solicitor representing you ill advise you on the options open to you in terms of your claim and any potential adverse costs implications. 1 COUNTY COURT OR EMPLOYMENT TRIBUNAL? Employment rights may be determined in the civil courts (such as the county court or the High Court) or in the employment tribunal. Complaints derived from your contract of employment (knon as breach of contract claims) are dealt ith in the main (although see further belo) in the civil courts. 1 1 This guide reflects the position in England, Scotland and Wales. In Northern Ireland there are to tribunals, the Industrial Tribunal (hich hears claims about employment matters) and the Fair Employment Tribunal (hich hears claims of discrimination on the grounds of religious belief or political opinion). More information about these may be found at: Hoever, although there are some procedural differences (no early conciliation and fees, for example), the overall litigation process is broadly the same.

2 September 2015 UCU guide to employment tribunals The majority of employment disputes (such as unfair dismissal, redundancy payment, discrimination, and detriment having made a histlebloing complaint) are derived from statutory rights and these are almost exclusively enforced in the employment tribunal. 2 The employment tribunal has a limited jurisdiction to deal ith breach of contract claims namely those disputes that arise on or are outstanding at the date of termination of employment. The compensation that can be aarded in the employment tribunal for a breach of contract claim is capped at 25,000 (unlike the civil courts here it is unlimited). You may ant to start by documenting your complaint and looking for evidence hich ill help you and your advisors to assess hether you have a good claim. Claims for personal injury are civil claims and are generally dealt ith in the county court or the High Court. Hoever, some claims such as discrimination claims may lead to an aard to reflect any personal injury caused by the discriminatory treatment. This guide focuses solely on the procedures that apply in the employment tribunal. BEFORE COMMENCING PROCEEDINGS It is important to remember that important time limits apply in all cases, so it is best to avoid delay and act siftly after the events you ish to complain about have occurred. In general, you may ant to start by documenting your complaint and looking for evidence hich ill help you and your advisors to assess hether you have a good claim. Keeping a diary of events and collating documents/ s and such like is also a good idea (and required if you initiate a claim). Before bringing a claim you ill have to follo your employer s internal procedures. Belo, e set out the usual pre-action steps. Pre-action steps 1 Grievance and disciplinary procedures A key pre-action step is to utilise your employer s internal procedures. What this means is that: if you have a complaint about the ay your employer, or a fello orker, has treated you, you should first initiate a complaint using your employer s grievance procedure, and if you are subject to a disciplinary and you are unhappy ith the outcome of that disciplinary process you should appeal the disciplinary decision using the procedure detailed in your employer s disciplinary policy. You should be aare that the disciplinary policy ill most likely set out a timeframe ithin hich to appeal. You should ensure that you comply ith this timeframe. You ill be able find details of your employer s grievance and disciplinary procedures either on the intranet, from HR or from your local union branch. If you fail to go through the appropriate internal procedure in the first instance and you later bring a tribunal claim, the employment tribunal can decrease any compensation aard by up to 25%. 2 Discrimination claims In discrimination claims it may be that you need more information before you can properly decide hether or not to bring a tribunal claim. A useful ay of trying to obtain information to 2 There are a small number of exceptions, for example, a claim for equal pay may also be brought the claim in the civil court. In addition, in cases of alleged harassment, the claim may also be brought in the civil courts. 2

3 UCU guide to employment tribunals September 2015 if you have a complaint about the ay your employer, or a fello orker, has treated you, you should first initiate a complaint using your employer s grievance procedure. support your case is to send your employer a list of key questions; be these questions about hat happened at the incident or incidents you ish to complain of, about comparators 3 (in order to sho differential treatment) or general statistics concerning the orkforce here you ork. You can send your questions in the form of a letter. An employer is not obliged to respond. Hoever ACAS guidance 4 states that an employment tribunal may look at hether and ho an employer has responded hen assessing a case and coming to its judgment. 3 Subject access request Another ay of trying to obtain information is to submit a subject access request under the Data Protection Act You can find information on ho to make such a request on the Information Commissioner s ebsite at: Hoever any disclosure ill be limited to personal information (that is information relating to you alone such as your personnel records), a fee of 10 is payable and your employer has up to 40 days in hich to respond. You cannot use this process to ask for personal data belonging to another person. 4 Freedom of Information request Public bodies such a colleges and universities are subject to the Freedom of Information Act (FOIA) In some cases, before you can decide hether you have a good claim, you may need some information from your employer hich is not otherise available to you. The FOIA can help although there is a cost associated ith making a request. 5 5 Early conciliation Before bringing an employment tribunal claim you must first contact ACAS 6 and file an early conciliation application form (you can do this online using the folloing link: or you can telephone on ) to attempt to conciliate your complaint. Once you have filed your application an ACAS conciliation officer ill contact you or your representative (such as a union representative) to go through the key elements of your complaint and hat you are seeking by ay of an outcome. The conciliator ill then speak ith your employer to ascertain hether there is scope for a negotiated settlement ithout the need to go to tribunal. It is important to note that if an oral agreement is reached this ill become binding from the moment of agreement so it is critical that you and your union representative are clear ith the ACAS conciliator about hat resolution you are looking for and hat you ill or on t accept. Any agreement ill subsequently be recorded in a form knon as a COT3. ACAS ill attempt to conciliate for up to a month and in some instances, if both parties are agreeable, for up to six eeks. If either party is not illing to engage in conciliation or no resolution is reached in the above timeframe ACAS ill issue you ith an early conciliation certificate. This ill contain a unique reference number hich ill need to be quoted on any claim if you decide to issue an employment tribunal claim. Of course, in some cases, you may decide not to there is no obligation to do so. 3 A fello orker hose circumstances are more or less the same as yours but ho received more favourable treatment ACAS is a statutory independent body hich is provides impartial advice to employers and 3 employee, and also produces codes of practice and guidance for both.

4 September 2015 UCU guide to employment tribunals 6 Letter before action There is no pre-action protocol in the employment tribunal 7 hereby the parties are obliged to follo certain steps including sending a detailed letter before action to the employer containing prescribed information. Nevertheless, this can be a useful step that, depending on the nature of the claim and the available evidence, may lead to an offer of settlement and an early resolution. Such a letter ould set out the issue(s) in dispute, provide a brief summary of the facts, the date(s) of any decision(s), act(s) and/or omission(s), and explain hy these are unlaful. The letter might also provide details of the remedy sought and a proposed reply date. Employment tribunal claims are subject to strict time limits. Generally speaking a claim must be brought ithin three months less one day of the date of the incident complained of. Revieing the response ith your advisers can help you understand the facts and arguments hich ill be brought against you, giving you more information and opportunity to consider hether you ant to proceed. If, despite the pre-action correspondence, the case is still not settled, it may be necessary to issue proceedings. Time limit for making a claim Employment tribunal claims are subject to strict time limits. 8 Generally speaking a claim must be brought ithin three months less one day of the date of the incident complained of (the primary time limit ). For more detailed information on time limits, it is alays best to seek advice from the union. So, for example, an unfair dismissal claim must be brought ithin three months less one day of the effective date of termination be that: the date on hich a notice of dismissal expires here no notice is issued the date on hich termination takes effect here a payment in lieu of notice is made the date on hich the termination takes effect, and in the case of a fixed term contract, the date the term expires ithout being reneed. In most discrimination claims the time limit is three months less one day from the date of the incident complained of. When deciding the date of the act to hich a complaint relates, conduct extending over a period may be treated as done at the end of the period. Equal pay claims must be brought ithin six months less one day of the date of termination of the contract in question. Contractual redundancy pay claims (that is claims based on an enhanced contractual redundancy scheme) must be brought ithin three months less one day of the effective date of termination. Statutory redundancy pay claims (that is claims based on the scheme provided for in the Employment Rights Act 1996) should be brought ithin six months less one day of the effective date of termination. 9 In each of the above types of claims employment tribunals have a discretion to extend time limits. In reality they rarely do so. 7 Unlike the county court here such protocols must be observed. 8 There is not sufficient space in this guide to outline all the time limits. For more details see: 9 In some cases, making a ritten claim to the employer ithin six months of termination for a redundancy payment can extend this deadline to 12 months. 4

5 UCU guide to employment tribunals September 2015 The level of detail on the claim form ill vary according to the nature of the claim ith, in general, discrimination claims requiring more details than other types of claim. Time limits and early conciliation An application for early conciliation ill effectively stop time running. If early conciliation is unsuccessful time ill start to run once more as soon as the early conciliation certificate is issued. If there as less than a month of the primary limitation period left to run hen early conciliation is started then the time limit ill be extended by one month from the date of the early conciliation certificate. If early conciliation as not started in the last month of primary limitation then the time limit ill be extended by the duration of early conciliation. So if for example you are dismissed on 1 January, primary limitation ill expire on 31 March. If early conciliation is started on 1 February and finishes on 15 February (lasting 14 days) the time limit ill be extended to 14 April. Commencing a claim A claim is made by submitting a form called an ET1 to the employment tribunal service. This can be completed and submitted online at or filled out and delivered by hand or posted to the Employment Tribunal Service at Employment Tribunal Central Office (England and Wales) PO Box Leicester LE1 8EG or Employment Tribunal Central Office (Scotland) PO Box Glasgo G2 9JR. The claim form is available on the Tribunal ebsite ( The prescribed form must be used. The form requires you to provide: the reference number given to you by ACAS on the early conciliation certificate at the conclusion of early conciliation information about yourself including your name, contact details and hether you have found another job, and details of your complaint (that is details of the facts relevant to the complaints you ish to raise, the efforts made to resolve matters for example through your employer s disciplinary or grievance procedures and the types of complaints you ish to raise be that [for example] unfair dismissal, discrimination or detriment having made a histlebloing complaint or on account of your fixed-term or part-time status). The level of detail on the claim form ill vary according to the nature of the claim ith, in general, discrimination claims requiring more details than other types of claim. It ill require the permission of the employment judge to amend a claim once issued, and in some cases permission may be refused. Failure to provide all the required information ill lead to your claim being rejected. If you are being supported by UCU, your union appointed advisor ill take your instructions and complete the claim form. Fees A fee is payable hen first submitting an ET1 form. A further fee is payable hen a claim progresses to a full hearing. If you have lo earnings or savings, you may be entitled to a remission from the fees. The amount of the fees ill depend on the nature of your claim These are categorised as Type A and Type B see here for more details: 5

6 September 2015 UCU guide to employment tribunals When submitting an ET1 the issue fee for: a Type A claim is 160 (for claims such as unpaid ages or non-payment of a redundancy payment), and a Type B claim 250 (for claims such as unfair dismissal, discrimination and detriment under the part time orkers regulations). You can apply for remission from all or part of the fees depending on your (and any spouse or partner s combined) income and capital. If you claim progresses to a full hearing, then an additional hearing fee is payable of: 250 for a Type A claim, or 950 for a Type B claim. If your claim is successful it is possible to apply to the employment tribunal for an order that the employer repay to you the fees that have been paid. In the course of your claim, additional fees may be incurred. If you are being supported under UCU s legal scheme, 11 e ill pay the appropriate fees if you are not entitled for fee remission. Fee remission You can apply for remission from all or part of the fees depending on your (and any spouse or partner s combined) income and capital. An application for fee remission is made filling out a form EX160A. You can find a copy of this form at: You representative may be able to help you complete the form but you ill need to sign it personally. Your representative cannot sign on your behalf. You ill need to collate evidence of your financial means, including pay slips, bank statements and receipts. You may need to sho evidence going back a year. You can then either: post your completed fee remission form and documents together ith your completed paper ET1 form, or if you've submitted your ET1 online, it ill ask you if you ant to apply for fee remission. You should follo the instructions on ho to complete the fee remission form and post it ith your evidence. You ill need to apply for remission in respect of the hearing fee separately. This is done approximately one month before the full hearing hen you receive notification from the employment tribunal that the hearing fee is payable. On receipt of your ET1 the Tribunal Office ill check to ensure the form includes all the relevant information and if so you ill be sent an acknoledgement of service and the ET1 ill then be sent to your employer by the Tribunal Office. AFTER THE PROCEEDINGS HAVE COMMENCED Your employer has 28 days from the date on hich it is sent a copy of the ET1 in hich to respond using a form called an ET3. It is possible for your employer to apply ithin this 28 day period for an extension. This may be granted if it is just and equitable to do so for example if a key member of staff is on holiday and it is not possible to prepare a response in his or her absence. 11 Contact your branch or regional office for details, or visit our ebsite 6

7 UCU guide to employment tribunals September 2015 In the event the employment judge considers a claim or defence to have little reasonable prospect of success they may order a party to pay a deposit of up to 1,000 (per complaint) as a condition of proceeding ith the claim or the defence. Sift process Once the ET1 and ET3 have been received by the employment tribunal the employment judge ill read through the claim and the response to determine hether there are arguable complaints and defences. If the judge is of the vie that the claim or the defence or part thereof should be struck out then the tribunal ill send out a notice explaining the reasons for the decision and providing a fixed-time period in hich the relevant party can rite back to the tribunal setting out hy the claim or the response should not be struck out. The judge ill then either permit the claim or the defence to proceed or ill call a hearing to determine the matter. If the response is dismissed the claim ill proceed as if no response had been presented and the judge ill decide hether the matter can be determined on the papers, ie the ET1 and ET3 or hether a hearing is necessary. RUNNING A CLAIM Case management Employment tribunals have extensive poers to manage the progress of a claim to a full hearing through the use of orders and directions either on their on initiative or folloing an application by either party. Preliminary hearing Either party or the tribunal may request a preliminary hearing to determine substantive preliminary issues such as: hether the tribunal has jurisdiction to hear the claim (for example hether a claimant has sufficient service in an unfair dismissal claim or hether a claim is out of time) hether a claim or defence should be struck out (as either lack reasonable prospects of success i.e. are more likely than not to fail), or hether a deposit should be paid before alloing a party to proceed. In the event the employment judge considers a claim or defence to have little reasonable prospect of success they may order a party to pay a deposit of up to 1,000 (per complaint) as a condition of proceeding ith the claim or the defence. Case management orders Another function of a preliminary hearing is to make case management orders and directions to determine ho a case should proceed. In more straightforard cases such as unlaful deductions from ages, redundancy payments and unfair dismissal claims, once the sift stage has been completed the tribunal ill often simply make a directions order ithout a Preliminary Hearing and send it out to the parties. In more complicated claims such as discrimination claims (hich ill often require details of comparators and in disability cases may require expert evidence to determine hether or not a person is disabled here disability is disputed) the tribunal ill usually hold a preliminary hearing to consider in detail the appropriate directions. It is quite common for preliminary hearings to take place by telephone. This saves costs but means you, as the claimant, may not be a participant or observer to the hearing as only your representative takes part. A failure to comply ith orders fully and timeously can have serious consequences, including having your claim struck out. The duty to comply ith orders is the party s and not their representative s. 7

8 September 2015 UCU guide to employment tribunals Either ay case management orders ill set out a number of steps that the parties are required to take leading up to the full hearing. These ill commonly include: 1 Schedule of loss This is usually the first procedural step on the directions order. As a claimant you ill be required to provide a document setting hat you are seeking to recover if you in your claim. For example, in a dismissal case, it might include details of any earnings you claim to have lost, and, if you have secured a ne job, the date you started that job, your pay and any other losses such as lost pension rights and any expenses you have incurred (such as job seeking expenses). In discrimination claims you may also include details of injury to feelings and here appropriate any injury to health. You ill need to give early thought to here all potentially relevant documents may be located and to collating these, so that you can provide copies in a timely manner. 2 Disclosure The next step is likely to be disclosure. In simple terms, this involves both parties preparing a list of all the documents they have hich might be of relevance to the case and then sending a copy to the other side. 12 The other parties are entitled to either inspect the originals or, more commonly, to request copies of the documents in the opponent s list. 3 Disclosure obligations Disclosure of documents is an onerous and potentially time consuming task. As a party to litigation, you have a legal duty to preserve all relevant documents once you become aare of the dispute and intend to litigate it. The ord documents in this context has a broad meaning. As ell as things such as letters, minutes from meetings and medical reports it also includes all drafts, diaries, notes on scraps of paper, and audio and video recordings. It also includes information stored electronically such as s, text messages, documents stored in softare form (such as Word, Excel, PoerPoint, etc) and database content. In short, it includes everything that contains any information relating to the case and regardless of hether the document helps your case or hinders it. Your duty to preserve documents includes not only documents presently in your possession, but also documents that may be held elsehere over hich you have poer or control eg ith your bank or doctor. The disclosure duty is a continuing one hich means that any documents you subsequently find or create may also have to be disclosed if they are relevant. The employment judge has ide poers to order disclosure and, especially in the digital age, it should be noted that data held in the cloud or even deleted on servers can be ordered to be disclosed. Even metadata and headers are disclosable, if required by the tribunal. You ill need to give early thought to here all potentially relevant documents may be located and to collating these, so that you can provide copies in a timely manner and your representative can prepare a list in accordance ith the case management direction. 4 Hearing bundle Folloing receipt of the parties list the parties ill need to agree hich documents are relevant to the issues to be determined by the tribunal at the full hearing. Once agreed the case management orders ill usually direct the employer to put together the agreed bundle of documents knon as the hearing bundle. This ill be the bundle of documents that 12 There are only very limited exceptions to the disclosure requirement, usually relating to legal advice from a legal professional. Documents marked confidential are disclosable, but documents marked ithout prejudice are usually not. In some cases, documents relating to protected conversations (i.e. conversations aimed at settling an ordinary dismissal claim) are also exempt. 8

9 UCU guide to employment tribunals September 2015 The preparation of a good itness statement is essential to the success of a claim. You ill be required to provide a lot of input into the drafting as it is important that the statement reads as if it comes from you in your ords, and not your layer s. the employment tribunal ill refer to hen considering the claim. The hearing bundle should be indexed and paginated and ill usually be finalised approximately a month before the itness statements are due to be exchanged. This is so that the parties are able to refer to the appropriate documents and page numbers of the hearing bundle in their itness statements. 5 Witness statements After disclosure has taken place, the parties ill usually need to prepare and exchange (simultaneously) itness statements. Witnesses ill need to attend the full hearing otherise the eight attached to their evidence ill be reduced. Witnesses are not required to read out their itness statement but the other side ill be entitled to cross examine. The preparation of a good itness statement is essential to the success of a claim. You ill be required to provide a lot of input into the drafting as it is important that the statement reads as if it comes from you in your ords, and not your layer s. The statement contains the entirety of the itness s evidence, and ill usually do so in a strictly chronological manner referring to pages in the hearing bundle as needed. It must be accurate as any inaccuracies found to exist may undermine the itness s credibility. 6 Experts reports Expert evidence is rare in employment tribunal cases. Hoever it may be necessary to obtain evidence from medical experts in disability cases here disability is disputed. Possible directions may require that (i) you (as the claimant) provide medical evidence at your on cost (ii) that you undergo a medical examination by a doctor or specialist of the employer s choice at the employer s cost or (iii) that both parties obtain a report jointly. This ill entail agreeing ho to appoint, the instructions to be given and ho the cost is to be shared. Preparations for the full hearing As can be seen, leading up to the full hearing there ill be a significant amount of preparatory ork to be undertaken. You can assist this process from the outset by ensuring that comprehensive searches are made for all relevant documents so that these can be provided to your representative in a timely manner. You may also be asked to ork on drafts of your itness statement and respond to questions from your layers. Hearing fee The hearing fee is payable approximately one month before the hearing. Full hearing At the earliest, this ill take place after about 6 12 months from the date legal proceedings are issued. Hoever, in more complicated cases, the period may be longer The hearing ill generally be open to the public. The tribunal ill consist of an employment judge and to lay members (knon as ing members ). Hoever in some cases (such as unfair dismissal cases) the judge may sit alone. UCU-appointed layers instruct barristers to represent members supported under its legal scheme. You ill usually, but not alays, be able to meet your barrister before the hearing in a case conference hen your barrister ill take you through the case and help you prepare for the hearing. 9 At the hearing, the order in hich the parties cases are presented ill depend on the type of claim, for example, in an unfair dismissal claim the employer usually presents their case first. Witnesses are sorn in and are cross examined by the other party s

10 September 2015 UCU guide to employment tribunals representative, and may also be questioned by the tribunal panel. Giving evidence can be difficult and stressful, and the tribunal may accommodate reasonable adjustments in appropriate cases. At the end of the hearing the tribunal ill give its judgment either verbally at the time or more usually, in riting after the hearing. REMEDY The employment judge may order an additional hearing to consider and decide remedy. If they do, the same process of preparing a hearing bundle and itness statements is needed. Sometimes, litigation can also provoke unelcome and unexpected positions being taken, for example, your employer may only agree to settle a claim if you agree to end your employment. This leaflet cannot address all the issues relating to hat remedies may be ordered. In general, the remedy is a financial one, but, in equality cases, recommendations can also be made. Hoever, there are many remedies sought by claimants hich the tribunal cannot order you should alays discuss ith your advisers hat objectives you are seeking from the litigation so that they can guide you as to hat is, and is not, achievable. It is not unusual for the remedy to be a modest amount of money. 13 In discrimination and histlebloing detriment cases it is also possible to recover an aard for injury to feelings and, in the event of an injury, a personal injury aard. COSTS Deposit orders and adverse costs The general rule in the employment tribunal is that costs do not follo the event and therefore each party is responsible for their on legal costs. Hoever, the inning party may apply for, and/or the employment tribunal of its on volition may make, an adverse costs aard here: one party or their representative has acted vexatiously, abusively, disruptively, or otherise unreasonably in bringing or conducting the claim, or the claim had no reasonable prospects of success. If a deposit order or an adverse costs order is made against you, you ill be personally liable for those costs. 14 SETTLEMENT All litigation carries risk; there is no such thing as a cast iron case. Litigation is time-consuming and, given that it necessarily entails revisiting (sometimes) difficult experiences (particularly in discrimination cases), it is also stressful. Sometimes, litigation can also provoke unelcome and unexpected positions being taken, for example, your employer may only agree to settle a claim if you agree to end your employment. With these considerations in mind it is important to be clear at the outset hat it is you hope to achieve. Your representative ill advise you but the employment tribunal has the poer to reduce compensation, especially in unfair dismissal cases. With this in mind it 13 The average aard for unfair dismissal as about 12,000 and for discrimination claims about 14,000 according to government statistics for UCU does not indemnify you against costs orders. 10

11 UCU guide to employment tribunals September 2015 The employment tribunal is obliged to encourage alternative dispute resolution. There are a range of options for considering alternative resolution including ACAS, mediation and judicial mediation. can be important to consider hether there are any non-financial measures (such as the terms of an agreed reference, assurances in relation to your role in the future or agreed adjustments in a disability case) hich might be important to you and hich an employment tribunal does not have the poer to order. A negotiated settlement may be able to achieve a resolution that the employment tribunal cannot give you. In addition, if you are being assisted under the UCU legal scheme, there is an expectation that you ill follo advice hich may include advice to settle. Negotiations and settlement can take place before and after a claim begins. They ill usually result in a settlement agreement or an ACAS facilitated COT3 agreement. In either case, you should expect to be required to maintain a high degree of confidentiality both as to the pre-agreement negotiations and the actual terms of the settlement. In addition, you should be careful not to do anything during your employment hich might be taken to amount to a breach of your contract of employment, as this may jeopardise the settlement. Confidential pre-termination negotiations There has been, since July 2013, statutory protection of confidential pre-termination negotiations. 15 Hoever, this rule only applies to unfair dismissal claims. It provides that certain discussions regarding settlement must be kept confidential should a matter not settle and proceed to an employment tribunal. Discrimination and histlebloing claims are not affected and evidence from any discussions are admissible. Alternative dispute resolution The employment tribunal is obliged to encourage alternative dispute resolution. There are a range of options for considering alternative resolution including ACAS, mediation and judicial mediation. ACAS Early conciliation has been touched on above and is an obligatory pre-requisite before an employment tribunal claim can be lodged. ACAS ill attempt to conciliate for up to a maximum of six eeks hereafter, if a resolution cannot be reached, it ill issue an early conciliation certificate. If a claim is then lodged but both parties remain illing to engage in concurrent negotiations ACAS ill continue to conciliate up until the full hearing. This ill not affect the tribunal claim as conciliation is a separate and confidential process. In the event that a settlement is subsequently reached this ill recorded in a COT3 form. Mediation Private mediation ith an independent mediator (sometimes referred to as employment mediation here the employment relationship has ended and orkplace mediation here the employment relationship is still ongoing) entails a neutral third party assisting the parties to reach a resolution. The cost can be split beteen the parties although in practice it is often borne by the employer. Where an agreement is reached this ill be documented in a legally binding agreement. If the settlement resolves any statutory claims (such as unfair dismissal or a discrimination complaint) then it ill need to be signed by you, your employer and a certified independent adviser (hich is usually a solicitor hose fees your employer ill most likely agree to pay). Alternatively the agreement can be recorded in an ACAS COT3 form but this ill necessarily involve the assistance of ACAS. 15 Knon as protected conversations. 11

12 September 2015 UCU guide to employment tribunals Judicial mediation Where an employment tribunal claim has been issued and a case has been listed for a full hearing of at least three days and involves discrimination or some other complex issues the judge may raise the possibility of judicial mediation at the preliminary hearing. If both parties agree, the judge ill then consider hether mediation is appropriate. If he decides that it is, a flat fee of 600 is payable by the employer. If a settlement is reached, the terms ill be recorded in riting and ACAS ill usually be involved in incorporating the terms into a COT3 form. Alternatively the parties may finalise the settlement terms by entering into a settlement agreement. Conclusion Litigation is alays an uncertain business, and should not be entered into lightly. In this guide e have tried to set out the process, but in each case the progress of the claim can either be more straightforard or much more complicated. Litigation is alays an uncertain business, and should not be entered into lightly. In this guide e have tried to set out the process, but in each case the progress of the claim can either be more straightforard or much more complicated. If you have any queries in relation to any aspect of this leaflet, please do not hesitate to contact your regional office. Please note that the advice contained ithin this booklet is subject to any further detailed and specific advice that e or your legal representative may provide to you. University and College Union UCU, Carlo Street, London NW1 7LH Tel: [email protected] IMPORTANT DISCLAIMER: This is intended as a general guide to the la as it stood in it is not intended as an exhaustive explanation of the tribunal process. In all cases here you think you may have a legal claim, you are strongly advised to seek the union s help at the earliest moment. 12