Friday, December 6, 2019
Question: Visit a tribunal which permits public access and attend the legal proceedings for a day. You should demonstrate your attendance by discussing the proceedings of the employment tribunal. Summarise the case you observed and the decisions by the tribunal. Identify and narrate the appeal procedures of tribunals in the UK. Through a wider research, evaluate the purpose of Alternative Dispute Resolution (ADR) and, with particular reference to the services provided by the Advisory, Conciliation and Arbitration Service (Acas), assess to what extent it is a successful means of resolving disputes outside the formal judicial process. Answer: The proceedings of an employment tribunal Executive summary: There are number of tribunals in England and Wales and Scotland that deals with the various types of disputes between employers and employees. These tribunals are known as the Employment Tribunals (Busby, 2015). They basically have a statutory jurisdiction to hear the disputes that arises out of an employer and employees relationship. Scotland and England and Wales have separate employment tribunals to deal with the issues (BUSBY and MCDERMONT, 2012). It is required to be mentioned here that a matter of Scotland cannot be filed in England And Wales. In the same manner, a matter of England and Wales cannot be filed in Scotland. There can be a transfer of a case from Scotland to England or vice-versa in special circumstances. The same rule of proceedings is governing in both the jurisdictions since the year 2004, with certain differences in the terms of the civil law sustaining in both the nations. For example, the Scottish Employment Tribunal follows the Scottish Civil laws and varies broadly from the procedure that is followed in England And Wales (Collins, 2012). The Employment Tribunals are governed by the rules are that are set out by the Secretary of State. It lays down certain statutory rules that are to govern the objectives, procedures and other aspects of filing a claim before the employment tribunal. It is to be mentioned here, that the rules of appealing are set down separately by a set of rules formulated by the Employment Appeal Tribunal. Procedure to be followed: Any person who is willing to bring a matter to the Employment Tribunal shall at the very first, present a claim in a Claim Form in the prescribed manner, within the specified time limit to any Employment Tribunal Office. A claim has to be submitted either in person or in electronic format, be it e-mail or internet (Cushway and Hallsworth, 2012). If any person is late by a fraction of second even, his Claim might be rejected. The Employment Tribunal may not be allowed to hear the matter anymore on the grounds of being lately submitted to the office. It will not even be considered for the Pre-hearing Review. Once a Claim Form has been accepted by an Employment Tribunal Office, it has to be sent to the Defendant for his response. He has to submit the Response Form within 28 days of receiving the Claim Form. If he fails to do so within the prescribed form, then he might be barred from taking part in the proceedings and the claim might proceed undefended. Generally any Claim Form or Response Form shall be submitted in the form prescribed so as to make it valid and acceptable by the Tribunals Office. An Employment Tribunal Office has every right to cancel or reject a claim if it is not valid by its characteristics (Taylor and Emir, 2012). For making a claim before the Employment Tribunal, it should be submitted within three months from the date of occurrence of the event. Such an event may constitute of any issues like reasonless dismissal from the company, or, wages not being paid on time. Exceptional situations are there, were a time can be extended by the Employment Tribunal, if it deems fit in its view. The time limit for Equal Pay and Redundancy Pay is six months, as prescribed by the procedure laid down by the Secretary of State. An Employment Tribunal allows for several types of hearing in nature: Case Management Discussion is used to clarify and decide issues by discussing Pre-Hearing Review is a method of hearing issues of certain types like trade union to determine whether the parties in the matter are entitled to do so There is another type of hearing known as Full hearing. In matters of Full hearing, a matter is heard by five people in total, three judges and two lay members. In a full hearing, at the very first there is a submission of both the sides, followed by calling upon the witnesses of both the sides for examination. Their witness statements are collected in advance. It is required to be mentioned here that a party can in written submit his willingness to discontinue the matter any time during the course of the proceeding. A withdrawal can also be granted orally at a hearing. Case Study and Observation: In the matter of David Roger v Ignitis Corp Ltd, as observed, it was a matter of wages not being paid for the last six months. Moreover there is unreasonable deduction of Provident Fund amount from the salary. David Roger had placed a Claim Form before the Employment Tribunal claiming that his salary was not being paid by Ignitis Corp for the last six months. On asking for salry, false promises were made by the company that it would be paid shortly but there was no payment of it till date. On receiving the Claim form, it was approved by the Employment tribunal office and was sent to Ignitis for response. Igntis applied the Response form within the prescribed time as laid down. On the hearing date, five persons were present in the Tribunal room. Three of them were judges sitting in a row and two other person sitting in a different row, supposed to be the lay members. The judges first ordered the petitioner to put forward his facts and demands before the court. After the Petitioner had laid down his facts and demands before Tribunal, the judges asked the Defendant to put forward his arguments in reference to the claims made by the Petitioner. The Defendant in that order presented his argument stating that it had been informed earlier that as the company was going through financial crisis, it would be little late to pay the wages. It was informed by issuing a notice. On hearing the argument, the judged decided to hear upon the witnesses along with their witness statements. After hearing the witnesses and considering the statements given by them as evidences and also the facts laid down by both the sides, the judges on discussing the entire facts with the othe r two lay members, passed an order stating that Ignitis Corp Ltd shall pay $50000 for wages due along with $3000 as fine for delaying in payment of the wages and also for the loss suffered by David Roger. Appeal Procedures of Tribunal in United Kingdom: There are special Employment Appeal Tribunals set up in England And Wales and Scotland. It derives its powers from the statute laid down in the country. Such tribunal is superior court of record and thus can be considered to be equal to the standard of High Court. An appeal will be entertained in the Employment Appeal Tribunal on the following grounds: There was a misconduct of law by the tribunal There was no evidence as to the fact found by the tribunal The decision provided by the tribunal is partial in nature An appeal should be laid down within 42 days of receiving the order of the Employment Tribunal on a certain matter. To file an appeal before the Employment Appeal Tribunal, the very step required to be taken is to serve a Notice of appeal to the tribunal. The notice shall be in the prescribed form, containing certain details about both the parties in the dispute, along with the identification of points of law on the basis of which the appeal has been formulated (Urwin, Buscha and Latreille, 2013). A fee has to be paid in order to appeal before the Employment Appeal tribunal. There are respectively two fees t be deposited with the tribunal. One is the issue fees of 400Euros and secondly the hearing fees of 1200 Euros. After the fees has been deposited with the tribunal. The hearing of the appeal will start by issuing a notice to the defendant party. On the hearing, the points of law are to be examined critically by the bench of judges along with calling upon the witnesses for the hearing (Urwin, Buscha and Latreille, 2013). After considering the facts and points of law and statement of both the sides, the judges will decide upon the issue, which either might be in favor of the Appellant or that of the Defendant. Alternative Dispute Resolution Alternative Dispute Resolution also known as External Dispute Resolution in some countries, is a process of settling dispute between two parties without going for legal proceedings. It is a sort of legal procedure whereby two parties go for an agreement to settle their point of disagreement. It is a sort of litigation procedure which is conducted out of the court (DeGroote, n.d.). This particular technique or procedure, allows a third party to settle the dispute between two parties in conflict. It is a collection of processes to settle the dispute between two parties, in informal or confidential pattern. Alternative Dispute Resolution consist of Arbitration, Mediation, conciliation procedures within its scope (DragosÃÅ'Ã ¦ and NeamtÃÅ'Ã ¦u, n.d.). There are certain purposes for which Alternative Dispute Resolution has been adopted as a way out to resolve issues between two conflicting parties (Gaston and Al-Dawsari, n.d.). It is also regulated by certain sets of laws and legislations formulated by the nation. The main aim of adopting this procedure is to settle disputes of people without going for the huge expenses of litigation procedure. Another aim that Alternative Dispute Resolution achieves is that the confidentiality of the parties in dispute are maintained. There is no public flaunting of the parties in society, which might be publicized if a person goes for litigation procedure. Thirdly, there is no harassment in Alternative Dispute Resolution. Parties are free from the hazardous that has to be borne in litigation procedure (Hornberger, 2013). The main purposes of adopting Alternative Dispute Resolution are that it is voluntary, provides speedy recovery from the dispute, less expensive in nature and less adversarial (L owe and Pidgeon, n.d.). The advisory, Conciliation and Arbitration services aims to check organizations and professional life. This aim is adopted by enhancing a better employment relationship. If better improved relationship are maintained between employers and employees, it would be quite obvious that there will less amount of disputes cropping into the professional world. The main jobs of the advisory board are to act as a body to give correct advices to the party when in conflict with another party (Mason, 2015). The advisory board provides adequate advices to the reason of dispute brought before it. In conciliation procedure, the parties to the dispute appoint a conciliator who separately meets both the parties at two different locations and attempts to solve the dispute by coming to a mutual point. Conciliation is generally adopted to settle the dispute without proceeding for any litigation (Nolan-Haley, n.d.). It is a procedure adopted to visit the parties separately, know their issues in person and advise a mutual point to crop out the differences. Arbitration Services requires the appointment of an Arbitrator by the parties in conflict. It generally calls for a meeting or conference where both the parties are present and the reason for conflict is discussed in front of everybody to come to a mutual decision. The arbitrator generally plays a role of the mediator who tries to listen to the dispute and provides with a decision that would satisfy both the parties. Today Alternative Dispute Resolution is internationally recognized and adopted by people without any barrier in their thoughts about the procedure (Steffek et al., n.d.). Alternative Dispute Resolution is mostly adopted by the companies to settle their disputes in very short span of time. As this process if also less expensive so it has become easy for the people to access this technique of law. Alternative Dispute Resolution is successful in solving issues internationally now. Today even conflicts between two different nations like to adopt Alternative Dispute Resolution as a procedure to redress the issues between them. It is successful in settling disputes between two parties providing adequate acceptable decisions in nature (Thomas, n.d.). References Busby, N. (2015). Challenging Employment Tribunal Fees: R (Unison) v Lord Chancellor and another (No 2).Edinburgh Law Review, 19(2), pp.254-259. BUSBY, N. and MCDERMONT, M. (2012). Workers, Marginalised Voices and the * Employment Tribunal System: Some Preliminary Findings.Industrial Law Journal, 41(2), pp.166-183. Collins, D. (2012). Alternative Dispute Resolution for Stakeholders in International Investment Law.Journal of International Economic Law, 15(2), pp.673-700. Cushway, B. and Hallsworth, I. (2012).The employer's handbook 2012-13. London: Kogan Page. DeGroote, J. (n.d.).Alternative dispute resolution. DragosÃÅ'Ã ¦, D. and NeamtÃÅ'Ã ¦u, B. (n.d.).Alternative dispute resolution in administrative proceedings. Gaston, E. and Al-Dawsari, N. (n.d.).Dispute resolution and justice provision in Yemen's transition. Hornberger, R. (2013).11th annual alternative dispute resolution course 2013. Austin, Texas: State Bar of Texas. Lowe, D. and Pidgeon, C. (n.d.).Lowe's transport manager's operator's handbook 2015. Mason, D. (2015). Alternative dispute resolution trial.Veterinary Record, 176(20), pp.527-527. Nolan-Haley, J. (n.d.).Alternative dispute resolution in a nutshell. Steffek, F., Unberath, H., Genn, H., Greger, R. and Menkel-Meadow, C. (n.d.).Regulating dispute resolution. Taylor, S. and Emir, A. (2012).Employment law. Oxford: Oxford University Press. Thomas, L. (n.d.).12th annual alternative dispute resolution. Urwin, P., Buscha, F. and Latreille, P. (2013). Representation in UK Employment Tribunals: Analysis of the 2003 and 2008 Survey of Employment Tribunal Applications (SETA).British Journal of Industrial Relations, 52(1), pp.158-184. Urwin, P., Buscha, F. and Latreille, P. (2013). Representation in UK Employment Tribunals: Analysis of the 2003 and 2008 Survey of Employment Tribunal Applications (SETA).British Journal of Industrial Relations, 52(1), pp.158-184.