The Employment Tribunal process made simple.
Bringing or responding to an Employment Tribunal claim is a lengthy process and Tribunals are overwhelmed due to COVID-19 and other changes. Our guide to the Employment Tribunal covers everything you need to know including the Employment Tribunal process, opportunities for settlement, Tribunal costs and what is required from you at each stage.
Our Employment team are experienced in representing clients against claims such as unfair dismissal, discrimination, whistleblowing, breach of contract and TUPE.
Before an employee can bring a claim the first step they need to take is to contact the ACAS Early Conciliation Service. They must do this within 3 months less one day of their dismissal or the act that they are complaining of.
The process is started by a simple form that the employee completes online. It is then assigned to an ACAS officer who will contact the employee to discuss the matter further.
If the employee wishes to attempt to conciliate, the ACAS officer will then contact the employer to discuss the potential for settlement. This conciliation period can last up to 6 weeks.
If either party doesn’t want to conciliate or the conciliation fails, the employee is then sent a certificate with a reference number that they can use to bring a claim. Usually the employee has one month after the conciliation ends to submit their claim.
The Tribunal process is started by the employee submitting what’s called an ET1 form. This needs to be completed electronically and submitted via the Tribunal’s website.
The claim form requires the following details:
Although the claim form appears very simple, the employee needs to ensure that the legal basis of their claim and the facts and events that they are relying on are clear. This is far more than just a tick box exercise.
Once the claim has been submitted the next steps are:
Once a claim has been accepted the Tribunal will send an acknowledgement of claim and a copy of the claim form to the named employer. This will be sent by post to the address given by the employee. The Tribunal will also include a copy of the ET3 response form that needs to be completed.
The employer needs to provide its defence within 28 days of the claim being sent to them, otherwise they may lose the right to defend the claim. The response can be submitted online or by email to the relevant Tribunal.
The Tribunal’s response form itself appears relatively simple. However, in addition to completing the form employers will also need to attach a much more detailed document setting out their full grounds of response.
The ET3 should set out the employer’s version of events and provide an explanation for any facts or circumstances that the employee has relied on in in the ET1. There will usually also be various legal points to raise. Most employers appoint a legal representative to respond on their behalf for this reason.
Once the Tribunal has accepted the employer’s ET3, it will send a copy to the employee, who is known as the claimant. The Tribunal will also send an acknowledge of response to the employer, who is then known as the respondent.
An employment judge will review both the ET1 and the ET3. They will then either send both parties a written “case management order”, setting out a timetable of things to be done to prepare the case for final hearing, or set a date for a “preliminary hearing” to take place, either by telephone or at the Tribunal itself, to decide the appropriate timetable after hearing from the parties’ representatives. Preliminary hearings are usually dealt with via telephone.
In most cases, the order for directions will set a timetable for the parties to exchange documents and witness statements and agree a bundle of documents to be used at the final hearing. It will also confirm how many days the Tribunal will set aside for the final hearing and when this will take place.
Both parties will need to give witness evidence to support their case. For the employer this is usually the individuals that made key decisions, for example the employee’s manager or the individual that chaired the disciplinary hearing. It is common for the claimant’s only witness to be themselves.
Both parties also need to go through a process called disclosure. This is where parties prepare lists of all documents that are potentially relevant to the case and provide these to the other party.
Once lists are compared, copies of documents must be swapped so that both parties have everything relevant. Both parties have a duty to disclose all relevant documents, even those that are not helpful to their case or response.
All the relevant documents will then be included in the documents bundle used at the full Tribunal hearing, which the parties will be required to agree.
In addition to the cost of bringing or defending an employment case, there are a variety of additional factors, such as the time it can take up, the stress it can cause, the risks and uncertainty of litigation and the impact of publicity, that may make settlement an attractive option for either party.
The vast majority of employment cases do in fact settle before final hearing. Settlement is usually achieved via the ACAS service, which continues to be available to the parties during the life of the case.
Settlement usually involves the payment of an agreed sum of compensation to the employee and, in return, the withdrawal of the claim from the Tribunal and an agreement that both parties will keep the terms of the settlement confidential. In some cases, settlement can include non-financial aspects, such as agreeing the wording of a reference letter.
There are now three options for the format of an Employment Tribunal hearing:
You will know well in advance if you are attending in person or remotely. Remote hearings are becoming more common for simple unfair dismissal cases and money claims which can be heard by a single employment judge.
In person hearings are more commonly used where one of the parties is not represented or the issues involve discrimination.
If you are attending remotely you will be told to test the technology in advance. You will need a suitable quiet environment where you will not be interrupted or overheard to take part in the hearing.
You will be sent a copy of your witness statement and the agreed bundle of documents beforehand. It is helpful to have a second screen that you can view these documents on whilst giving evidence.
If you are attending in person you will usually be asked to arrive before 10am on the first day of the hearing. You will need to go through security at the Tribunal building, which will sometimes be attached to the normal court or could be a separate office building.
There will be a clerk assisting the judges who will assist with the administration on the day and will ask you to sign in and give your details.
Be prepared for a lot of waiting around. The Tribunal will require some reading time and there may be other preliminary matters which they wish to attend to for you to give your evidence.
Employment judges can decide unfair dismissal cases alone. For cases involving discrimination or whistleblowing issues, employment judges are joined by 2 lay members, traditionally one from an employer background, such as HR or business, and one from an employee background, such as a trade union.
The non-legal members’ role is similar to magistrates in that there is no requirement for legal training. They will be led by the employment judge in terms of the legal tests, however they may ask questions and fully participate in proceedings and the ultimate decision.
Before the hearing the parties will have agreed a list of the legal issues the judge will need to decide. They will have also exchanged witness statements and agreed a bundle of documents that will be referred to during the day and will include the claim form and response.
At the start of the day the parties will discuss any administrative matters, like the order of witnesses. They may make brief opening submissions about the case. The Tribunal will then move to hear the witness statements. The order of witnesses will be agreed in advance.
Employment Tribunals are less formal than the High Court and County Courts. For example, no-one wears wigs or gowns. However, they are still a formal setting. You should always address the judge as Sir or Madam.
If you are at a hearing in person you will be asked to come to the witness table. You can’t bring documents to the table and will only have the witness statements and agreed bundle of documents. If you are at home attending remotely you should also have no other documents with you.
You will be asked to swear an oath or to give an affirmation that you will tell the truth. Once you are under oath you cannot communicate with anyone involved in the case until you have finished your evidence. For example, if you are attending remotely, you should not send or receive messages with others until your evidence has ended.
Many witnesses are anxious about what to wear. It is best to be neat and smart, if you are representing the company you will usually be asked to wear a business dress or your work uniform. Bear in mind that even when you are not giving evidence yourself you are on show to the Tribunal during the hearing.
Witness statements are taken as read in the Employment Tribunal, so you won’t have to read your statement out – you will just go straight into being cross examined.
Cross examination is the low point of a party’s case, and is designed to focus on the weakest parts of each witness’s arguments. The other side will ask you questions about your witness evidence. These are usually closed questions, designed to limit you to a yes or no answer. The judge and any lay members may also ask questions. They may refer you to documents that contradict what you have said, or suggest that what you have said in your witness statement is incorrect.
After the cross examination there is the option of a brief re-examination, which is where your representative can ask some limited open questions to try and fix any damage caused during cross examination. Re-examination tends to be brief if it occurs at all.
The starting point is to be as familiar as possible with the case and the evidence you are providing. When agreeing your witness statement ensure that this is in your own words and that you are comfortable it covers everything relevant.
Whilst you are not expected to have memorised your witness statement or the documents, ensure you read through everything in advance so it is fresh in your mind. This includes the bundle of documents prepared for the hearing, which you will be referred to whilst giving your witness evidence.
When you agree your statement, make sure that you are comfortable with it and it is in your own words. If there’s something not mentioned, or a document is missed out that you think is relevant, make sure the solicitor is aware of it.
Invest the time to ensure your statement is your own and you are happy with it. You will not be able to refer to a new document or piece of evidence on the day.
It’s really important to act respectfully at all times. Try not to react loudly or obviously to evidence you disagree with. Instead, note the point and pass this on to your representative discretely.
Try not to second guess things too much. It is your job to give your evidence and say what you recall. It is your representative’s job to present your case. Try and stay calm, take your time and appear open and honest.
If you don’t remember, explain this or refer to the documents if you can to jog your memory. However, make sure you do answer the question – otherwise you may appear evasive.
If the question asks for a yes or no answer but you need to clarify your answer, give that answer and then explain if you need to but try and keep it simple and to the point.
It can be helpful to look at the representative asking you the question when you are asked the question, but then give your answer while looking at the judge (and/or Tribunal members). The judge and Tribunal members will ultimately be deciding your case so you are presenting yourself to them. This technique also has the effect of breaking the flow of the discussion and reminding yourself that you are not in a conversation.
Q: Can you recover costs if you successfully defend a claim?
A: It is unlikely that, even if an employer successfully defends the claim, the Tribunal will make an order requiring the employee to pay their legal costs, or vice versa.
The Employment Tribunal will only order that one party pay the other party’s costs in limited circumstances, usually where it considers that a party or their representative has acted “vexatiously, abusively, disruptively, or otherwise unreasonably”, or that they have been “misconceived” in bringing or defending the proceedings.
Q: How long does an Employment Tribunal take?
A: Ideally the Employment Tribunal process should take 6 – 12 months from start to finish. Unfortunately, at the moment the Employment Tribunal system is struggling to cope with the volume of claims it has received, coupled with the fact that it has faced closures and changes due to COVID-19.
It is now taking several months for a preliminary hearing to be listed, and cases now are being listed for final hearings in spring 2022. It is therefore likely to take over 1 year for a case to be heard in the Tribunal.
Q: What happens at an Employment Tribunal?
A: The Employment Tribunal’s role is to determine employment disputes between employees and employers. They can determine a set list of potential claims from unpaid wages to discrimination claims. Claims are ultimately decided by the Tribunal at a final hearing at which both parties will be required to attend and the Tribunal will hear witness evidence and review the relevant documents. They will also hear legal arguments. At the end of the hearing, either on the day or in writing the Employment Judge will provide a judgment determining whether the employee’s claims are successful and if so the amount awarded. There are several different stages which the parties need to go through to prepare a case for a final hearing which is set out in further detail in our guide to the Employment Tribunal.
Q: How much can an Employment Tribunal award?
A: Awards vary depending on the type of claim brought and the specific circumstances.
For an unfair dismissal claim the award is split into two parts, the basic and compensatory award. The basic award is calculated in the same way as a statutory redundancy payment, based on the employee’s weekly pay, length of service and age, with a cap on weekly pay which is adjusted yearly. The compensatory award is then based on the employee’s loss of earnings until they find another role, subject to a cap of 52 weeks’ pay or a set cap (currently £89,493). Deductions can also be made, for example if an employer successfully demonstrates that the employee contributed to their dismissal by their conduct.
In a discrimination claim the amount of the compensatory award is uncapped and further awards can be made to reflect injury to feelings.
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