Employment Tribunal Claim Against Your Employer

Bringing an Employment Tribunal claim against an employer can be a stressful and time-consuming experience if you’re unfamiliar with the process. Below is a guide to the most important things you need to know about the Employment Tribunals process. Previously, Employment Tribunals were called Industrial Tribunals.

What happens before a claim can start?

An Employment Tribunal will usually expect you to have tried to resolve any employment disputes with your employer internally first, before lodging a claim to an Employment Tribunal. This usually involves raising a grievance or appealing against a decision imposed on you by your employer, such as a dismissal or a disciplinary warning. Workplace disputes can be tricky to resolve, but failing to take these first steps can harm your chances of succeeding in your claim to an Employment Tribunal, or can also reduce the amount of compensation which you may be entitled to if you win.

What is ACAS Early Conciliation?

As well as following the employer’s internal processes, most types of Employment Tribunal claims also require individuals to go through “ACAS early conciliation” before they can bring their case to the Employment Tribunals. Early conciliation involves contacting ACAS to formally notify it, and your employer, of the dispute to see whether settlement of your claim can be explored as an alternative to an Employment Tribunal claim. ACAS will then assign an individual conciliator to your case, who will help you to discuss settlement with your employer if both parties agree to this.

What happens during ACAS Early Conciliation?

Early conciliation can be a very useful tool for employees who would prefer to reach a financial settlement with their employer and avoid the need to go to the Employment Tribunals. It’s also a compulsory step – your claim won’t be accepted by the Employment Tribunals if you haven’t taken part in early conciliation first. Once you’ve been through the early conciliation period, you’ll then get an early conciliation certificate. You need an early conciliation certificate number before you can bring a full claim to an Employment Tribunal. When early conciliation achieves a legally binding settlement, it’s considered a form of alternative dispute resolution. It’s a Claimant’s responsibility to make sure that it starts the early conciliation process within the correct time limit.

What’s the deadline for bringing an Employment Tribunal claim?

It’s very important to comply with the strict time limits for starting ACAS early conciliation and bringing Employment Tribunal claims. In most types of Employment Tribunal proceedings (e.g. unfair dismissal and discrimination claims), there’s a deadline of 3 months from the act of which you are complaining (e.g. this act could be the date of your employment ending or the date of discrimination) to start the ACAS early conciliation process, and then you will need to bring your Employment Tribunal claim within a further deadline – usually around a month – after the ACAS process ends if settlement hasn’t happened. It’s crucial that you pay attention to the relevant time limits if you are looking to bring a claim to an Employment Tribunal.

What if the deadline for bringing a claim is missed?

While there are limited circumstances when Employment Tribunals will accept your claim without you having complied with the above time limits, this is rare and will usually require you to have an exceptional reason for having failed to do so.

How do you bring the actual claim?

Bringing an Employment Tribunal claim involves filling in a form (the ET1 claim form) and submitting it to the Employment Tribunal online or by post. It’s usually advisable to include a separate document along with the claim form which contains further details of the facts and legal grounds for your claim to an Employment Tribunal. If you’re not sure about what to include in this document then you should ask an employment lawyer or trade union for help, as it’s vital to make sure you include the key factual and legal points – you won’t be able to amend or add to your claim later unless the Employment Tribunal gives you special permission to do so. By way of example, if you want to bring an unfair dismissal claim, you would need to set out in writing your legal arguments as to why you say your dismissal amounted to an unfair dismissal.

What types of claim can be brought?

You should speak to a legal representative before deciding to make a claim to the Employment Tribunal, because they can then talk you through what type of claim you may have. However, claims to the Employment Tribunal can include things like unfair dismissal, discrimination, whistleblowing, equal pay, unpaid wages, failure to be paid the national minimum wage, being treated badly because of trade union activities and many other breaches of employment rights that can be declared unlawful.

How is the claim defended?

Once you have sent your ET1 to the Employment Tribunal and your claim has been processed and allocated to your nearest Employment Tribunal (this can take a few weeks), the Employment Tribunal will send these documents to your employer (or former employer). The employer will then have 28 days to lodge its defence to your claim. The defence is an important document

What happens after the claim and defence are with the Employment Tribunals?

At an early stage of the case, the Employment Tribunal will send the parties a list of “directions” which they will need to comply with in preparation for a hearing of your claim. Alternatively, the Employment Tribunal might arrange Preliminary Hearings.

What are Preliminary Hearings and when are they needed?

There are generally two types of Preliminary Hearings in the Employment Tribunal, and ultimately the Tribunal decides whether they are needed in a case. The first type is a Preliminary Hearing that deals with the administrative or housekeeping aspects of the claim (usually called “Case Management Hearings” and often held by telephone or video link). At these, case management directions will be given and the details of your case will be discussed. The second type is of Preliminary Hearing is one that deals with bigger or more substantive preliminary matters arising in the case – e.g. where one party has brought a disability discrimination claim and the Tribunal need to decide whether the that person is disabled in the first place. Deciding that preliminary issue of disability will determine whether the discrimination claim can proceed to a further, final hearing. This second type of Preliminary Hearing is more likely to be held in person but can sometimes be held by video.

What directions could be issued to you?

The types of directions you will usually be told to follow are:

• Preparing a “schedule of loss” – a document setting out how much compensation you would like to claim, and what the legal grounds for claiming this amount are;
• Disclosing all relevant documents in your possession that are relevant to your case – whether they’re harmful or helpful to your claim (your employer will also be directed to do the same);
• Agreeing with your employer the contents of a “hearing bundle”, to include all the relevant documents which the parties want the Employment Tribunal to read at the hearing; and
• Preparing written witness statements for you and anyone else you need to call as a witness at the hearing. Witness statements can often be the most important pieces of evidence to be considered at a Tribunal hearing. As such, particular care should be taken when preparing witness statements.

Some of these steps can be complicated and it’s important to get them right, so you should speak to your employment lawyer for help with any directions the Employment Tribunal gives you.

What happens at the Employment Tribunal hearing (e.g. of a typical unfair dismissal claim)?

You will usually be given the dates of your hearing by the Employment Tribunal a few months in advance, and you are responsible for making sure that you and your witnesses attend.

Attending a hearing can be daunting, but Employment Tribunal hearings are less formal than hearings in civil and criminal courts. Your hearing will usually be held by a single Employment judge or, in some cases, an Employment judge accompanied by two panel lay members.

It’s usually best to instruct an employment law barrister to conduct the hearing on your behalf, and it’s likely that your employer (or former employer) will do the same.

At the hearing, you and your witnesses will give verbal evidence about your case and there will then be cross examination of these witnesses by your employer or their barrister on the contents of the evidence. It’s important to be prepared for this and to be familiar with the contents of your witness statement and the hearing bundle. You or your barrister will also have the opportunity to cross-examine your employer’s witnesses, and both parties will then make final legal submissions to the judge or panel.

The length of the hearing will depend on what type of claim you’ve brought, the legal issues involved and how many witnesses have been called. In straightforward cases, most claims can be heard in a day or less, but complex discrimination or whistleblowing claims can involve hearings lasting several days or even weeks.

When do you find out the outcome of the hearing and what happens next?

Although the judge may deliver the Employment Tribunal’s judgment verbally at the hearing, in some cases they may decide to reserve judgment and send their decision to the parties at a later date.

If you’ve been successful with your claim, sometimes it will be necessary for the Employment Tribunal to arrange a further hearing to decide how much compensatory award you should be entitled to. This will happen if the issue of compensation wasn’t able to be discussed at the previous hearing.

If you’re awarded compensation or another remedy (such as an order that you should be reinstated to your old job or that certain conduct is declared unlawful), your employer will normally have 14 days to comply with that order or to pay any compensation.

What if you are unhappy with the outcome of the hearing?

If you’re unsuccessful with your claim and would like to appeal against the decision, you should take legal advice on whether and how to bring an appeal to the Employment Appeal Tribunal. After the Employment Appeal Tribunal, it is technically possible to present a further challenge to the Supreme Court. The Supreme Court is then the end of the road in terms of challenging a decision and alleging a breach of your employment rights.

Can you recover your legal costs from the losing party?

Usually not. Costs orders in the Employment Tribunal are rare, and in the majority of employment cases each party will have to pay their own legal costs regardless of the outcome of the claim.

This means that if you win your case, it’s likely that you’ll still have to pay your own legal costs and won’t be able to recover those from your employer. If you lose your claim, it’s again unlikely that you’ll have to pay the other party’s costs.

However, a costs order can be made if the Employment Tribunal thinks that one party has been especially unreasonable in the way it’s conducted itself during the Employment Tribunal process. This means that it’s important to seek guidance from an employment law specialist on how to conduct the Tribunal process, especially if your employer tells you it intends to make an application for costs.

Can you get insurance cover for your legal costs?

Sometimes, you might be able to fund your legal costs using a legal expenses insurance policy, which you might have attached to another type of insurance policy such as your home or car insurance.

If you need any advice or help with bringing an Employment Tribunal claim, or if you would like to obtain a cost estimate for representing you in your claim, please contact a member of our employment law team in confidence here or on 02920 829 100 for a free initial call to see how they can help.