About the Employment Tribunals (Scotland)
What are Employment Tribunals?
The Employment Tribunals are the judicial body with responsibility for workplace justice, being the main forum for deciding disputes between workers and employers. They are part of the wider judicial system, and one of the three largest tribunals in the greater tribunals system.
Previously called the Industrial Tribunals, Employment Tribunals were created in 1964. Initially, they decided appeals against training levy assessments imposed on employers by Industrial Training Boards. They still hear some appeals against administrative decisions, in respect of matters like the minimum wage or health and safety notices, but they have changed beyond recognition over the last 60 years.
There are two separate jurisdictions for Employment Tribunals in Great Britain: one for England and Wales and one for Scotland. Each is led by a senior judge (who has the statutory title of President) and each has its own independent judiciary. They have shared rules of procedure, known as the Employment Tribunals Rules of Procedure, and they sometimes issue joint directions and guidance, which can be found on these web pages.
The directions and guidance, whether or not issued jointly with the Employment Tribunals in England and Wales, can be found in the section Rules, Orders, Directions and Guidance.
The Employment Tribunals Rules of Procedure are contained at Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. You can also find them in the Rules section on these web pages.
The most senior leadership judge, as with all tribunals, is the Senior President of Tribunals. You can read more about the Senior President here.
What types of cases do Employment Tribunals decide?
The cases for which Employment Tribunals are best known include unfair dismissal and redundancy claims, claims about unpaid wages or unpaid holiday pay, claims of unlawful discrimination, and claims of detrimental treatment following protected disclosures (often called “whistleblowing”). Most of their caseload consists of claims for compensation or other remedies made by workers against employers.
The ability of Employment Tribunals to decide cases and to award compensation or other remedies is set out in legislation passed by Parliament. Cases are not decided arbitrarily, but according to law. The most important items of legislation are the Employment Tribunals Act 1996, the Employment Rights Act 1996 and the Equality Act 2010, but there are many other statutes and statutory instruments of importance.
For almost all claims, there must have been an attempt at conciliation through Acas (the Advisory, Conciliation and Arbitration Service) before embarking on Employment Tribunal proceedings. Claims are brought using a paper or digital claim form called an ET1, and employers can defend those claims using a paper or digital response form called an ET3. There are strict time limits.
Some cases before the Employment Tribunals are about relatively small amounts of money, with hearings lasting an hour. Others, such as equal pay cases, are complex and high value, involving many parties and with hearings lasting several weeks, and may require one or more preliminary hearings for “case management” purposes to ensure that they are ready. Most cases fall somewhere in between these two extremes.
The Employment Tribunals deal with tens of thousands of claims a year on a wide range of matters, including those brought by individual claimants and those brought collectively by large groups of claimants. Some of these claims are withdrawn or settled before they reach a hearing. Sometimes, they settle as a result of judicial mediation or another form of “alternative dispute resolution”. Where a claim cannot be settled or mediated, there must be a judicial determination following a hearing. The Employment Tribunals conduct thousands of such hearings every year.
How are claims decided?
Claims are decided at a hearing.
When the parties are in agreement, it may be possible to issue a judgment without a hearing. However, if the parties cannot settle their dispute, the case will be decided at a hearing.
The hearing will take place at an official court or tribunal venue, with all the parties present (often called an “in-person” hearing). Hearings can be held at a number of venues across Scotland, but the main hearing centres are in Glasgow, Edinburgh, Dundee, Aberdeen and Inverness. Alternatively, the hearing may take place with everyone joining on a video link, or by using the telephone. Sometimes the hearing may take a mixed approach of video and physical attendance, depending on what is in the interests of justice.
An Employment Tribunal hearing will always be chaired by a judge (known as an Employment Judge). Sometimes, the Employment Judge may decide a case with two lay individuals known as non-legal members. Depending on the type of hearing there may also be a clerk present to assist with administration.
Employment Judges will issue decisions at various stages, and on a range of matters, throughout the life of a case. However, when that decision sets out a concluded position on one or more parts of the claim, it is known as a judgment.
For more information, see the At the Hearing section.
How are Employment Tribunal decisions challenged?
Decisions of the Employment Tribunals, including judgments, may be challenged by way of an appeal. Appeals can be pursued on a point of law to the Employment Appeal Tribunal, and thereafter to the Inner House of the Court of Session and the Supreme Court. Strict time limits apply.
In certain circumstances, parties can also apply for orders of the Employment Tribunals to be varied (changed), suspended or set aside, and they can apply for a judgment to be reconsidered, which might lead to it being confirmed, varied or revoked. Again, strict time limits apply.
For more information, see the After the Hearing section.
How formal are the Employment Tribunals?
Employment Tribunals are not the same as courts, although they share some common features with them.
Claims are brought and defended by people with professional legal representation, with lay representation (e.g. by a friend or relative), or with 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.
Save in exceptional situations, all hearings at which a claim is decided (including those held on video) are held in public. Judgments are published on an online register. For more information on the register, look in the After the Hearing section.
Employment Tribunals can arrange interpretation services for hearings in languages other than English where that is needed.
Who sits on an Employment Tribunal panel?
An Employment Tribunal hearing will always be chaired by a judge (known as an Employment Judge). As with judges in other courts and tribunals, Employment Judges are independent members of the judiciary appointed following rigorous selection exercises and subject to statutory qualifying criteria.
There are about 45 Employment Judges in Scotland. Around half of them are known as fee paid judges. They are mostly solicitors or advocates still in private practice.There are typically about 22 salaried judges. In contrast to fee paid judges, salaried judges have left their practice as a solicitor or barrister or their academic role to devote themselves fully to performing judicial duties. Most salaried Employment Judges have been appointed from the ranks of fee paid Employment Judges who, in turn, have mostly been drawn from the ranks of expert practitioners and academics specialising in employment and discrimination law.
There is no difference in authority between the judgment of a salaried Employment Judge and the judgment of a fee paid Employment Judge.
Sometimes, the Employment Judge may decide a case with two lay individuals known as non-legal members. There are about 120 non-legal members sitting in Scotland. They are split into two panels. The first panel is for those with experience of the workplace from the perspective of an employer, such as a business owner or human resources specialist. The second panel is for those with experience of the workplace from the perspective of an employee, such as a trade union official. For some types of case, a non-legal member will be appointed from each panel to sit with the Employment Judge, so that there are three people in total. This ensures that the Employment Tribunals have a balance of industrial experience.
For more information about the Employment Tribunals judiciary, including the names of the salaried Employment Judges, look in the list of Employment Judges (Scotland) section.
How are cases listed for a hearing?
Because of the high rates of settlement and withdrawals, the Employment Tribunals always list many more cases than they have available Employment Judges or hearing rooms. This ensures effective use of the hearing centres and judges and, by extension, effective use of public finances. It also means that cases are generally heard earlier than they would otherwise have been.
To see what cases are coming up in the Employment Tribunal lists, see the section Public Hearing Lists.
Normally this robust approach to listing does not result in any difficulty. Sometimes, however, a smaller number of cases than expected will settle or be withdrawn. If that happens, there are several possibilities:
• Conversion to video. It might be necessary to change an in-person hearing to a video hearing, perhaps at short notice.
• Time reduction. A case may have its allocated time reduced. For example, if there are only four days available but a case has been listed for five, the case may be managed in such a way that it completes within four. This is more likely to happen where the case has been listed for several days.
• Postponement. On occasion, despite these efforts, it may not be possible to locate a venue or judge to hear the case, or it may not be appropriate to move the case to video or to cut the allocated time. The case may then be postponed and taken out of the list. Efforts are made to keep such scenarios to a minimum. Where cases have been postponed for this reason, the Employment Tribunals will seek to prioritise them when they are re-listed.
The Employment Tribunals will consult parties if such options are being considered.
Please let us know promptly if your case is withdrawn or settled. This will avoid unnecessary work on your case and it may enable us to reallocate your hearing time to another case.
How are Employment Tribunals administered?
The Employment Tribunals in Scotland have staffed hearing centres in Glasgow, Edinburgh, Dundee and Aberdeen. Hearings also often take place in Inverness and certain other venues across Scotland. Some administrative functions are carried out by staff based in Glasgow for the whole of Scotland, others are undertaken by staff based in Edinburgh, Dundee or Aberdeen.
The senior leadership judge for the Employment Tribunals in Scotland is the President. The President is responsible for national judicial policy and engages regularly with senior civil servants to seek to ensure appropriate resources for the Employment Tribunals, to support the effective administration of workplace justice. The President works closely with the Senior President of Tribunals and the President of Employment Tribunals in England and Wales.
The Vice-President is responsible for the day-to-day operation of Employment Tribunals in Scotland and, with the President, provides guidance and leadership to Employment Judges and non-legal members.
Some aspects of judicial policy are discussed in the published minutes of the national user group, which you can read in the User Groups section.
Neither the President nor the Vice-President has leadership responsibility for the civil servants who support the Employment Tribunals, They work for HM Courts and Tribunals Service (usually just called “HMCTS”), which is part of the Ministry of Justice. HMCTS provides the courts and tribunals with administrative support and are responsible for staffing, the estate, I.T. equipment, and the administration of case files. They have their own managers, and the most senior civil servants in the Ministry of Justice are answerable to government ministers.
HMCTS is undergoing a programme of reform designed to improve ways of working and introduce digital case files.
How should I correspond with the Employment Tribunals?
The HMCTS staff who administer the Employment Tribunals service are very busy. Email correspondence is preferred to post or telephone calls.
If you wish to call, please note that the telephone lines are open from Monday to Friday between 9am and 5pm. Many staff members will be supporting a hearing between 9.30am and 10.30am, so please try to avoid calling the office between these times unless it relates to a hearing on the day of your call.
If you write to the Employment Tribunals, please quote the case number that has been allocated to the case you are bringing or defending. This helps staff to find your file more quickly. With emails, please put the case number in the subject field. Please do not telephone the office to check that your email has arrived, unless you have not received the standard automated response system to confirm receipt.
Please only send one copy of correspondence to the office. There is no need to send the same item by email or fax, followed by a copy in the post. This causes delay.
Please do not mark an item as “urgent” unless this is truly necessary, for example where it relates to an imminent deadline or hearing.
Please only send correspondence to the Employment Tribunals when you are asking for something or making an application. It is not necessary to copy your correspondence with the other side to the Employment Tribunals, unless you are asking for something or making an application. This can prompt unnecessary replies from the other side. It also causes delay.
When sending any correspondence to the Employment Tribunal office (except when making a request for someone to give evidence at a hearing), you must also send a copy to all other parties and ensure that this is made clear to the ET in your correspondence. This is required by rule 92 of the Employment Tribunals Rules of Procedure.
If you have not copied the other parties into your correspondence, you should say that to the Employment Tribunal office and you should explain why. The Employment Tribunals will then consider your explanation and let you know if you need to take any further steps.
HMCTS staff aim to deal with new claims within 3 to 5 working days. They aim to respond to other correspondence within 10 working days. If your correspondence is in relation to a hearing due to take place within 10 working days, it will be treated as a matter of priority.
What if I have a complaint?
If you have a complaint about a delay in an Employment Tribunal responding to your correspondence, or the way your case is being administered, that is likely to be a matter for HMCTS. This is because HMCTS provides administrative support to the Employment Tribunals. Your complaint should therefore be sent to the office manager for the office where your case is being handled.
If you have a complaint about the personal conduct of an Employment Judge or non-legal member, you can complain to the President. Details of how to complain, and examples of what you can and cannot complaint about, are available online. Please note that the judicial complaints process does not operate as a mechanism for challenging case management decisions or judgments about which one of the parties is unhappy.
If you are unhappy with a judicial decision in your case, please read How are Employment Tribunal decisions challenged? and the After the Hearing section.