Your straightforward 6 point guide to understanding the Employment Tribunal
If you have found your way to this page then it is likely you need to resolve a dispute with your employer and are considering pursuing a claim at tribunal.
Like all types of legal proceedings, advancing a claim at Employment Tribunal can seem quite a daunting prospect. With this straightforward guide we have taken 6 of the most common questions put to us by employees considering this course of action.
We will help you understand what the tribunal does, what you will experience, the issue of costs, what can effect your ability to claim, and how the process works step-by-step.
What does an Employment Tribunal do?
The Employment Tribunal provides a legal setting where disputes between you and your employer can be resolved once internal workplace processes or external conciliation have been exhausted.
Established in the UK in 1964 they were originally called Industrial Tribunals (the name by which they are still known in Northern Ireland). The majority of cases relating to UK employment law will be heard at Employment Tribunal, with some others falling under the jurisdiction of the civil courts.
There are a wide variety of claims that can be advanced at tribunal, but the most common types you could expect them to hear relate to:
- Unfair Dismissal
- Constructive Dismissal
- Discrimination (Age, Disability, Gender Reassignment, Transgender, Marriage & Civil Partnership, Pregnancy, Racial, Sexual Orientation, Sex, Harassment and Victimisation)
- Equal Pay
- Unlawful Deduction of Wages
The types of employment related cases you could expect to be heard in the civil courts might include:
- Wrongful Dismissal
- Contract disputes (i.e claims for non payment of wages as breach of contract)
- Accidents in the workplace
What Can I Expect At An Employment Tribunal?
We recognise that the prospect of attending court or embarking on legal proceedings could be quite a daunting prospect for you.
Although they might sound scary, in reality you will find that Employment Tribunals are not that intimidating. Whilst their decisions are legally binding, the tribunal setting is not as formal as that of a courtroom.
Typically, your hearing will be held in an office building rather than a law court, in an individually assigned tribunal room.
There will be 3 “judges” who will hear and decide on the outcome of your case, one will be an employment judge sitting alongside two lay judges. One of these judges will come from an employer centric organisation, whilst the other will be from an employee centric organisation (such as a trade union).
There will be a few cases that can be heard by only the employment judge.
Inside the tribunal room, the judges will sit at a raised desk but you will not find them wearing wigs or gowns as they would in other courts.
Although less formal in appearance (you will be expected to appear smart) your evidence will still be given under oath (or affirmation) at tribunal and anything less than respect for the proper procedure and conduct will not be welcomed by the judge.
The impact of Coronavirus on Employment Tribunal hearings
As you would expect, the restrictions and lockdowns imposed by the COVID-19 pandemic have had an impact on the number of cases being heard at tribunal, with subsequent delays in cases scheduled for trial.
Whilst you may still be required to attend in person, you can rest assured that all social distancing protocols will be in place in your tribunal room.
More and more, technology is being used to conduct fully remote or hybrid hearings. In the case of hybrid hearings certain individuals such as witnesses will be asked to give evidence over video link.
It is likely that tribunals will come to rely on technology to enable them to deal with the high volume of cases that are being advanced during this challenging time.
What About Costs?
Since they were declared unlawful by the Supreme Court in 2017, you do not have to pay fees to advance a claim at tribunal.
Of course, if you engage a solicitor or barrister to represent you then this will incur costs associated with their time in running your case.
At Tribunal Claim, if you have a viable case we would look to represent you on a no win no fee basis.
Employment law is complex and although you are not obliged to appoint a legal representative in an Employment Tribunal case, we would strongly advise that your chances of success are greatly improved where you choose to do so.
If you would prefer not to advance your claim alone at tribunal there are several options available to you to fund legal representation, including:
- No win no fee
- Legal Expense Insurance (LEI)
- Fixed Fee
- Conditional Fee
I’ve heard I could be liable for my employer’s costs if I lose!
Unlike courts, you don’t have to automatically pay the other sides costs if your claim is unsuccessful at Employment Tribunal.
Your employer may put in a costs order to the tribunal if they win, however you should be aware that there is only a very small chance these will be awarded (generally less than 1% of Employment Tribunal cases have cost orders attached).
BE AWARE: The other side’s (respondent’s) representative might tell you they will apply for costs if you lose. However, this is generally just a scare tactic to put you off moving forward with your case.
The few situations where a cost order might be put to you, include:
- Where you have brought forward a case that is completely hopeless with no chance of success*
- You behave badly in the way you have run your case
- Or, you turned down what the tribunal saw as a reasonable settlement offer
* For example, where there has been a preliminary hearing at which the judge advised you to drop the case, but you pushed on regardless
With the exception of these points, it is highly unlikely that costs will be awarded against you.
What Can Effect Your Ability to Claim?
The question of whether you can make a claim is based on the problem you have experienced in the workplace. But, there are some important conditions which will effect your ability to advance your claim at tribunal.
- Duration of service
- Time Limitations
Duration/Length of service
Unless one of the exceptions applies, then in order to advance a claim you will need to have worked for your employer for 2 years.
There are exceptions to the 2 year rule, so this restriction will not apply if your claim relates to:
You can view our Length of Service video explainer for more details.
In only exceptional circumstances, advancing a claim to Employment Tribunal must be done within 3 months less 1 day of the matter it is based on.
Certain types of claim are exempted from this rule and are subject to a time limitation of 6 months. These are claims relating to:
- Where an employee has not received their redundancy pay
- Equal Pay disputes
- Where an employee has been unlawfully excluded from a trade union
- If an employee has been unfairly dismissed for participating in lawful industrial action
You can use our handy Limitation Date Calculator to work out your limitation dates for submitting your claim.
What is the process for advancing a claim?
As with all legal matters, there is a process. It’s important to adhere to this as not doing so (or skipping certain steps) could result in your claim being thrown out.
If you believe you meet the duration of service and time limitation criteria, we recommend you speak with one of our specialist employment solicitors or assessment team who can advise you on the viability of your case.
Prior to moving forward you should have participated in your employer’s internal dispute resolution procedures. The ACAS Code of Practice on disciplinary and grievance procedures and the ‘Overriding Objective’ are in place to encourage dispute resolution without the need to resort to legislation.
Where it has not been possible to resolve the matter you can then move forward with a claim.
The key stages for advancing an Employment Tribunal claim
ACAS – Early Acas Conciliation
Before you can advance your claim you are legally required to participate in Early Acas Conciliation.
You must initially contact ACAS who will appoint a conciliator to your case. They will contact your employer/former employer and try to resolve your dispute without recourse to the Employment Tribunal via a COT3 settlement.
The time limit for making your claim will then be halted for an initial period of 4 weeks while this process takes place (this process can be extended by a further 2 weeks if agreed by both parties).
If it is clear that the matter cannot be resolved, this process can be ended at any point.
PLEASE NOTE: You are not obligated to accept a COT3 settlement and are entitled to decline it in favour of moving forward to tribunal.
If ACAS is unable to resolve your matter they will provide you with a numbered ACAS Certificate. You will need this number to carry out the next stage of the process.
The Employment Tribunal
You will now need to make your claim to the Employment Tribunal and will be required to submit an ET1 form. You will need your ACAS certificate number to complete this form prior to submission alongside your grounds of complaint or ‘particulars of claim’.
Once your claim is accepted the Employment Tribunal will then contact your employer ‘the respondent’ notifying them of your claim and giving them 28 days to lodge a response.
They will be required to submit an ET3 form which sets out their position in response to your claim.
On receipt of the ET3 form your case with be referred to an employment judge for consideration. At this point the judge will decide if your case is reasonable enough to be heard, should be struck out, or is outside of their jurisdiction.
Both parties can expect to receive a written response either requesting more information, or to confirm the initial findings of the judge.
Where the judge has deemed it a viable case to take forward, they will give directions to both parties (known as case management directions) to prepare for either a preliminary or final hearing.
It is not uncommon in more complex cases for there to be a Preliminary Hearing to discuss elements of the case and points of law. Alongside the tribunal, both you or the respondent can request this to be scheduled.
Where your case may be less complex, the Employment Tribunal will provide a hearing date and confirm what needs to be done in advance of that date.
A deadline for ‘disclosure’ will also be set whereby both sides will have to provide all documents for inspection ahead of the Final Hearing. You will be expected to provide documents such as:
- A schedule of loss
- Witness statements
- Any, and all documents relating to your case
The preparation for trial can involve a lot of paperwork and preparation. A specialist employment lawyer can really help you when making a claim at Employment Tribunal, as claimants can often find this element of the process overwhelming.
It is not uncommon for claimant’s who have decided to take forward their cases themselves, to decide in the final stages that they need a lawyer. Leaving this decision too late can be problematic as availability may be an issue.
What to do if you feel you have a case to bring at Employment Tribunal
Tribunal Claim’s employment law solicitors specialise in helping employees achieve justice, bringing successful claims at Employment Tribunal across the UK.
We are here to help you today.
You can call one of our team for a preliminary assessment of your claim on 0800 756 6605. Alternatively, you can also submit details of your claim 24/7 via our quick & simple online enquiry form and can expect a response from us within 48hrs via phone, email or text.
Tom Street qualified as a solicitor in 2003 and has over 20 years experience in employment and litigation law. He studied law at the University of Manchester before undertaking the legal practice course at the College of Law in Guildford, going on to complete his legal training at a firm in Chancery Lane, London. Once fully qualified, he moved to a niche litigation practice in the City of London.
In 2010, Tom set up his own legal practice, Tom Street & Co Solicitors and as part of this, in accordance with his strongly held objective to provide everyone with an easy pathway to justice he established the online portals Do I Have A Case? and Tribunal Claim. These websites are trading names of Tom Street & Co Solicitors.