Employment Law

Glossary of Employment Law terms

ACAS

In 1975 the Advisory Conciliation and Arbitration Service (ACAS) was founded to help improve employment relations. An ACAS officer is appointed to all employment tribunal (ET) cases to ‘conciliate’, i.e. to act as an independent intermediary to facilitate settlement.

Actual dismissal

Dismissal where the employer has terminated the employment contract as opposed to constructive dismissal where the employee resigns because of the employer’s fundamental (serious) breach of contract.

Admissible evidence

Evidence to the ET may be in documents or oral (spoken). Some forms of evidence will not be allowed by the ET and are termed inadmissible. The ET operates very liberal rules of evidence. Most forms of evidence are admissible although some may not be given much weight, such as written unsworn statements from absent witnesses or incomplete or unclear tape recordings.

Affidavit

A formal sworn statement for use in legal proceedings that has been sworn in front of a solicitor or barrister. The witnessing lawyer will usually charge a fee of £5 for the main document and £2 for each appended exhibit.

Affirm

This has two meanings:

a) A solemn non-religious promise to tell the truth in a court or tribunal in contrast to an oath (on a holy book of the particular religion);

b) An employee “affirms” his employment contract when he acts in a way that keeps the contract alive or in some way approves a change to it after the employer has committed a fundamental (serious) breach of contract. For example, the employer may unlawfully change the employee’s working hours. If the employee accepts them by working in accordance with them, he or she may be said to have affirmed the new contractual term. An employee’s affirmation of his or her contract after the employer has done wrong can deprive the employee of claim for constructive dismissal.

Appeal

A party’s right, once an ET has made a decision, to appeal against it on a point of law to an employment appeal tribunal. An appeal can be made against a preliminary or a final decision or judgement.

Appellant

Any party who appeals a decision. Either the employee or the employer may become an appellant if they appeal the outcome of an employment tribunal to the Employment Appeals Tribunal or EAT.

Authorities

Case law that has decided a particular legal principle. Legal principles are developed by cases which raise issues on new points of law not previously decided. Case law (the “common law”) is a feature of English law and other legal systems based on English law.

Breach of contract

Breaking or not complying with one of the agreed terms of a contract (of employment). A fundamental or repudiatory breach of contract is an extremely serious breach going to the heart of the employment relationship. If done by the employer, it may entitle a worker to resign and claim constructive dismissal. If done by the worker, it may entitle the employer to dismiss without notice.

Bundle

The collated documents which both parties to an employment tribunal claim have agreed which is used as part of the evidence to try key issues. The bundle is generally presented in lever arch files and paginated (page numbered) with an index.

Burden of proof

This refers to which party that has the responsibility of proving matters, such as whether a dismissal took place or whether unlawful discrimination happened. The party with the burden of proof cannot simply make an allegation and expect the other party to do all the work disproving the allegation.

Case management and Case Management Discussions (CMD)

Case management is about the preparation of cases for hearings which involves each party disclosing documents, arranging the exchange of witness statements etc. A case management discussion or CMD (formerly known as a “directions’ hearing”) deals with these matters at a private meeting at the ET. Typically, a CMD is the first tribunal meeting held at a tribunal after a claim has been submitted.

Chairman

The lawyer (solicitor or barrister) of at least seven years’ experience who acts as judge in an employment tribunal. As part of a national recruitment drive to attract more lawyers to fill vacancies, these chair people are now known as employment judges.

Chronology

A list of key events with dates in date order. To understand a case an advocate will prepare a chronology which will include key dates such as when the employment contract started, when certain disputes arose, and when the employee was discriminated against or dismissed. Other key dates will include the dates of important letters and e-mails.

Claim

This has two meanings:
a) The subject matter of the case;

b) The worker’s document which starts the ET proceedings (originating application), usually written on an ET1.

Claimant

The employee who brings the ET proceedings (formerly known as the “Applicant”.)

Comparator

Discrimination is the concept that someone has been treated “less favourably” than others as a result of a particular characteristic that they possess. With minor exceptions, treating someone less favourably is unlawful where that characteristic is, for example, age, disability, race, sex, sexual orientation or religion. The central question is “less favourably than whom?” This requires a comparator, who does not have the particular characteristic which is presumed to be a factor in the discrimination, enabling a comparison to be made. The comparator can be a real or a hypothetical person.

Conciliation, Conciliation officer

Normally refers to the role of an ACAS (Advisory, Conciliation and Arbitration Service) officer once a case has started in liaising between the parties or their representatives off the record, usually on the telephone, to help encourage a settlement. ACAS now offers a conciliation service before the tribunal case has been lodged.

Constructive dismissal

This is where an employee resigns due to the employers’ fundamental or repudiatory breach of the employment contract. It is treated as a form of unfair dismissal like actual dismissal.

Contract workers

This is often used to refer to workers employed on fixed-term contracts who may or may not have unfair dismissal rights, according to whether they meet the eligibility criteria.

COT3

The standard form on which an ACAS conciliation officer records an agreement negotiated.

Cross examination

Questioning of a witness to undermine the case of the person who called the witness or to discredit the witness’ evidence. Advocates typically use leading questions designed to limit what the witness will say. The golden rule of cross examination is not to ask questions you do not already know the answers to.

Data Protection Act 1998

This is the friend of employees and the scourge of many employers. It can be used by employees to obtain copies of their personnel records. Employers must comply with this statute’s rigorous provisions.

Declaration

A formal binding statement about the legal rights of a party given as a remedy by a court or tribunal.

Direct discrimination

Where a person is treated unfavourably on a prohibited ground because of sex, sexuality, age, disability, race, religion etc.

Directions, hearings for directions

The old term for case management discussions.

Discovery

An old fashioned term for disclosure of documents.

Disclosure of documents

The formal process of parties revealing relevant documents to the other. The term ‘discovery’ is still sometimes used.

Early Conciliation

It is now compulsory for Claimants to notify ACAS first under its Early Conciliation procedure before submitting an Employment Tribunal claim (in almost all cases). An ACAS Conciliator will then speak to both employee and employer to see if a settlement can be reached.   ACAS conciliators should be independent and should not take sides. Conciliation is a confidential process so that Tribunals would not take into account what has been discussed during conciliation if the case subsequently goes to a Tribunal hearing.

Under the Early Conciliation procedure the time limit clock for submitting an Employment Tribunal claim is paused for up to one calendar month.  This can be extended by a further 14 days by agreement.   

EAT (Employment Appeal Tribunal)

The Employment Appeal Tribunal is the first level of appeal from an ET decision (this is followed by the Court of Appeal and the Supreme Court). The EAT deals with questions of law and does not make determinations of fact which is the task of ETs. For this reason it is only possible to appeal an ET decision to the EAT if there is a legal technicality in dispute or a clear case of bias or perversity in the decision made by the ET.

Effective date of termination

The day that an employment contract ended. This might be the day the employee was dismissed or the day they resigned.

Employee

Different categories of worker are eligible to claim different employment rights. Certain rights can only be claimed by employees.

ET

The stands for Employment Tribunal, formerly known as Industrial Tribunal (IT). Most employment cases are heard in ETs.

ET1

The ET1 (previously IT1) is the standard form on which the Claimant’s tribunal claim is written. It is also know as the “originating application”.

ET3

The ET3 (previously IT3) is the standard form on which the employer’s (the respondent’s) response or defence to the claimant’s ET1 is written.

Evidence in chief

The oral or written evidence usually given by a party in the form of a typed witness statement not including the questions that they are asked when by the other party or their representative in cross-examination.

Examination in chief

Asking questions of your own witness.

Extempore

Reasons or a judgement are said to be given “extempore” if they are given straight away at the end of a hearing.

Fact-questions of fact; fact findings

If something is a question of fact for the ET, it means that the issue is decided on the facts of the particular case as opposed to on the law alone. A fact finding is the ET’s decision on where the truth lies between two conflicting pieces of evidence.

Final submissions

The closing speech in an ET hearing.

Further particulars

A fancy way of saying additional information.

Final submissions

The closing speech in an ET hearing. The final submissions are sometimes put in writing. They may also be known as closing submissions.

Freedom of Information Act 2000

A statute that enables members of the public to obtain access to information from public authorities. This enabled access to and revelation of information which led to the Parliamentary expenses scandal. It can be particularly useful to the employee if their employer is a public authority such as a council.

Grievance, Grievance Procedure

Grievances are internal complaints made by workers to their employers. The grievance may concern the behaviour of a work colleague or manager. Employers should have their own grievance procedures for the bringing and investigation of such complaints.

Harassment

Harassment is any unwanted physical, verbal or non-verbal conduct which has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. A single incident can amount to harassment. Unlawful harassment may involve conduct of a sexual nature (sexual harassment), or it may be related to age, disability, gender reassignment, marital or civil partner status, pregnancy or maternity, race, colour, nationality, ethnic or national origin, religion or belief, sex or sexual orientation. Harassment is unacceptable even if it does not fall within any of these categories.

Held

Where something is held by a court or tribunal, this is its decision.

Indirect discrimination

Where employees are made subject to a rule or treatment that on its face is neutral between different groups but which indirectly discriminates. For example, imposing the same minimum height requirement on all employees could disproportionately affect women who are generally not as tall as men and who may as a result be discriminated against indirectly.

Inspection

Where the parties let each other have sight of or copies of their documents before the ET hearing.

Interim

This refers to all procedural matters between lodging the claim and the hearing. An interim hearing deals with such matters and may, for example, be a case management discussion or a pre-hearing review.

Judgment

An ET decision deciding a case or particular issue in the case is a judgment.

Jurisdiction

The ET may adjudicate only on certain claims brought by certain workers. These are matters ‘within its jurisdiction’.

Lay members

Otherwise known as “wing members”, these are the representatives from each side of industry (i.e. CBI and Trade Unions) who sit on many ET hearings.

Leading question

A question that indicates the required answer. Contrast: “You came out of your office and shouted at Mrs Smith” (a leading question) with “What did you do when you came out of your office?” (a non-leading question). Leading questions are the mainstay of advocates conducting cross-examination. However, “leading” a witness using leading questions is not permitted during examination in chief or examination of your own witness.

Liability; hearing on liability

The issue as to whether or not the worker wins his/her case, i.e. whether the employer is found ‘liable’ for unfair dismissal, discrimination, etc, as distinct from the issue of what compensation or remedies the worker should receive.

Limitation period

The time period within which a claim must be brought. For example, a claim of unfair dismissal should be submitted within three months of the effective date of termination (in rare circumstances this can be extended by the ET). Generally, breach of contract claims should be brought within six years of the breach.

Mitigate; mitigation

Mitigation refers to reasonable steps which should have been taken or were taken by a worker to find fresh employment to mitigate (i.e. reduce) the loss of earnings resulting from his/her dismissal.

Organogram

A chart showing an organisation’s structure and departments and who is responsible to whom.

Parties

The Claimant and the Respondent are collectively known as the parties to the case. Individually, each is a party.

Penalty clause

A contractual clause that imposes a disproportionate monetary penalty on one party for breach of contract in order to obtain strict compliance by coercion. In contract law generally penalty clauses are void and unenforceable.

Pleadings; to plead

Pleadings are the document which set out each party’s case, i.e. the ET1, ET3 and any additional information. To plead something is to put it into any of these documents.

Precedent

The courts decide cases by applying the law to given facts. There is a hierarchy of courts and tribunals for employment law purposes (Supreme Court, Court of Appeal, EAT, ET.) Each level of court/tribunal is compelled to follow legal principles and interpretations (precedents) set by higher level courts unless a case can be ‘distinguished’ on its facts. Where no higher level decision exists, the courts (except the ET) follow the interpretation of other courts of the same level. Precedent may also be referred to as ‘authority’.

Pre-hearing review

A hearing before the main hearing to decide a particular point.

Privilege

Certain verbal or written communications are private and need not be disclosed to the other side during a case. These are referred to as ‘privileged’. The issue tends to come up on disclosure and the definitive rules are set out in the Civil Procedure Rules 1998. The rules can get very complicated, but the most well known form of privilege is communication between a party and his/her own solicitor. See also “Without prejudice”.

Pro-bono

This is Latin from the phrase “pro-bono publico” which means for the public good. It is used to describe when lawyers work voluntarily without payment.

Protected Characteristics

The Equality Act 2010 provides protection against unlawful discrimination and harassment in respect of the following "protected characteristics": age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex and sexual orientation.

Quantum

What the claim is worth. It is a Latin word meaning “how much”.

Recoupment

The system by which certain state benefits may be re-claimed from part of the compensatory award in an unfair dismissal claim.

Re-engagement

The re-employment of a dismissed employee in a job similar to his previous one. This is a possible remedy for unfair dismissal.

Reinstatement

Where an employee gets his actual old job back as a remedy for unfair dismissal.

Remedies

Remedies are the compensation in money and other forms and also reinstatement and re-engagement which a worker may receive if she or he wins. A remedies hearing is sometimes dealt with separately from and later than the hearing on liability.

Repudiation

A contract is said to be repudiated where an employer or an employee has breached it in a fundamental (serious) way.

Reserved

A judgement is said to be “reserved” if it is not given at the end of a hearing but will instead be made available on another day.

Respondent

This is the legal term for the employer in ET proceedings.

Response

The employer’s reply or defence, usually written on an ET3 form.

Review

An ET can review a decision it has made on a number of specific grounds. This is different from appealing to the EAT and has a shorter time limit.

Schedule of Loss; Schedule of Remedies and Loss

During the preparation of a case, the Claimant is often ordered to prepare a schedule setting out how much she/he has lost by way of earnings and the value of the claim generally.

Serving documents

Delivering or sending documents to the other party.

Settlement agreement

A settlement agreement through legal or other authorised representatives meeting specified requirements so as to be binding on the Claimant in respect of ET claims.

Skeleton argument

Also known as a “skeleton”. A written outline summary of the key arguments to be used in ET proceedings or court supported by references to statutes and case law. Advocates are expected to provide these for proceedings in the EAT.

Standard of proof

An ET or court may never know the truth but they have to decide what to believe based on he evidence before them. Most people have heard of the standard of proof or threshold that has to be achieved in criminal trials – “beyond reasonable doubt” (or almost entirely certain) which is a high standard. In civil (non-criminal) matters the standard of proof or threshold is lower. The standard is “on balance of probabilities” (or more likely than not).

Statement of truth

A sentence that is required at the end of a witness statement that states that its contents are true such as: “This statement is true to the best of my knowledge and belief”.

Subject access request

A request under section 7(1) of the Data Protection Act 1998 entitling a data subject to copies of his or her personal information. In the context of employment disputes this is a useful tool by which an employee may see confidential information held in his or her personnel file.

Submissions

The summing up and legal argument that each side will present to summarise their case at the end of the ET submissions. See also “Final submissions”.

Summary dismissal

This occurs when an employee’s conduct is sufficiently grave as to justify immediate termination of the employment contract without notice. The worker is not entitled to either notice or pay in lieu of notice when summarily dismissed.

TUPE

This abbreviation is commonly used by trade unions to refer to the Transfer of Undertakings (Protection of Employment) Regulations 2006.

Vicarious liability

This is where an employer is responsible for the unlawful acts of his/her employees as if she/he carried them out him/herself, regardless of whether she/he knew or approved of those acts. In the employment field, it is mainly relevant to discrimination law.

Victimisation

This is a form of discrimination that involves treating an employee unfavourably because he or she has made a complaint of discrimination or helped another person to do so. For example, dismissing someone because they had previously complained of racial discrimination.

Whistleblowing

Making a disclosure of certain information (not all information) for which the employee is protected.

Wing members

See “Lay members”.

Without prejudice

Negotiations between the parties for the purpose of settling a case are off-the-record from the viewpoint of the ET. To ensure this is so, it is traditional to introduce the conversation by saying the words ‘can we speak without prejudice’? Letters regarding settlement should also be headed ‘without prejudice’. However, genuine attempts at settlement are without prejudice even if the words are omitted.

Witness order

An ET can issue a witness order to compel an unwilling witness to attend the hearing.

Witness statement

A statement taken from a witness. Generally ETs expect witnesses to read their statements aloud (providing they are not too long and there is sufficient time) and this is taken as witnesses’ evidence in chief. Witness statements without the presence of witnesses in person are of limited value: witnesses are expected to attend so that they can be cross-examined to establish the reliability of their evidence.