When an employee believes they have suffered unfair treatment by their employer, the first port of call is to attempt to resolve such matters internally, either informally or via the employer's grievance procedure. Unfortunately, this is not always possible. In situations where such methods of resolution are unsuccessful, an employee has the option of bringing a claim against the employer in an employment tribunal. Typically, although not always, claims relate to unfair dismissal; wrongful dismissal; constructive unfair dismissal; discrimination; equal pay; and/or unlawful deductions from wages.
Employees will not incur any fees to lodge a claim in the employment tribunal.
The timeframe open to an employee to bring their claims varies depending on the type of claim they are seeking to bring. There is a deadline for all claims, known as the "limitation date". Usually, the timeframe is three months minus one day from the date of dismissal or from the date of the act that the employee is complaining of. That applies in cases such as unfair dismissal and discrimination claims. However, when the employee claims a statutory redundancy payment or equal pay, they will have six months to bring the claim. The test for allowing an out of time unfair dismissal claim is an exceptionally high hurdle to surpass.
Before submitting a claim, employees must inform ACAS (the Advisory, Conciliation and Arbitration Service) that they intend to make an employment tribunal claim. ACAS will offer the employee an opportunity to attempt to settle their dispute with their employer through the process of "early conciliation" ("EC"). It is important to note that all discussions through the ACAS early conciliation process are considered to be off the record "without prejudice" conversations. Therefore, they cannot be disclosed or relied upon during the tribunal proceedings if a settlement is not reached.
When an employee informs ACAS that they wish to claim in an employment tribunal, they are known as the "claimant". The employer is known as the "respondent". Once the employee has contacted ACAS, the ACAS officer will take preliminary details of the employee's potential claim and then appoint an ACAS conciliator to the matter. He or she will ask permission to contact the employer for opening settlement discussions. An employer may choose not to engage in the process. If this is the case, the EC period will be brought to an end.
If both parties enter into the EC process, the conciliator acts as a "go-between" to facilitate discussions between the employee and employer. The conciliator will liaise with both parties to discuss their position and propose any settlement offers made by either side. Fundamentally, the conciliator is there to ease discussions between the parties, as relationships are likely to have broken down by this stage. The conciliator can help explain the process, talk through the issues, and discuss possible resolution methods that avoid recourse to the Employment Tribunal. The conciliator will not be able to force an agreement on either party or advise either party on their case's strength. The conciliator is also not allowed to assist either side in their preparations for Employment Tribunal. Both parties are entitled to appoint representatives, such as a friend, relative, work colleague, trade union official or a solicitor to act on their behalf. If a representative is appointed, the conciliator will speak directly to them rather than the employee/employer.
The ACAS EC process continues for a maximum period of 6 weeks. Of course, the EC process will not continue unnecessarily. If during the process, it becomes clear that the two parties are too far apart in their expectations to make settlement a possibility, ACAS EC can end sooner than this date. However, if an agreement is reached between the parties, this is recorded on a form known as a "COT3". The COT3 details the terms of the settlement between the parties. It is a legally binding document once agreed by both parties, and so it is vital both the employer and employee carefully read this document and are happy with its contents prior to agreeing the contents of it. Once the COT3 has been finalised, the matter will be closed. The employee will no longer be able to bring a claim in relation to this matter in an Employment Tribunal.
Alternatively, if an agreement cannot be reached between the parties during ACAS EC, ACAS will release a document to both parties, which is known as an EC certificate, to confirm this conciliation has taken place, but no agreement has been reached. This document is needed to enable the employee to issue a claim in the employment tribunal.
COMPLETING THE ET1
The first stage of making a claim is for the employee (the claimant) to complete and present the standard ET1 form, which can be accessed and downloaded via https://is.gd/emufiz. The ET1 is the employment tribunal's first indication of the claim being pursued by an employee, and it is therefore crucial that it is prepared and presented both clearly and succinctly to ensure that it is accepted by the tribunal. The employee must present an ET1 to the employment tribunal via the online claim portal, or by post/delivery to an employment tribunal office. The ET1 must be received before midnight on the date it is due to be presented.
Once an ET1 has been received by the employment tribunal, it will initially be considered by the administrative staff of the tribunal office. If the ET1 is accepted in full, the tribunal will serve a copy of the ET1 on the employer. If the claim (or part of the claim) is rejected, the tribunal will send the claimant a notice of rejection explaining the grounds for rejection and how to apply for a reconsideration, if applicable.
Once the ET1 claim form has been served, the employer will have 28 days within which it is required to present its response to the employment tribunal, in the form of an ET3 response form. An employer must present its response on the standard ET3 form, which will be issued to the employer when the tribunal serves the claim. Alternatively, the standard ET3 form can be accessed and downloaded via https://is.gd/jiluma. An employer will need to explain the details of why it is defending the claim. This can be included in the ET3 form itself. However, many employers elect to have a separate "grounds of resistance" document to supplement the ET3 from.
An employer can apply for an extension of time to present its response either before or after the original 28-day deadline has expired.
Both the employee and employer are entitled to put forward settlement offers at any point during the process. If a settlement is reached, the parties will need to contact the ACAS conciliator who was allocated to them during the ACAS EC process to formalise any agreement reached and ensure that the agreement is set out in a COT3 document making it legally binding on both parties.
Another option available to the parties in some instances is to engage in "judicial mediation". Judicial mediation is a form of "alternative dispute resolution" and allows the parties involved in a claim to be bought together for a mediation meeting. The judicial mediation will be held by an employment tribunal judge, who will remain neutral and unbiased. The judge will assist the parties in attempting to resolve their dispute without progressing to a formal hearing by providing a view on the prospects of each parties' case.
A preliminary hearing may take place before the main employment tribunal hearing. The purpose of a preliminary hearing is an opportunity for the judge to understand the case and to make arrangements for a final hearing. A preliminary hearing can take place via telephone, in person, or by CVP (cloud video platform). A preliminary hearing will generally be conducted by an employment judge sitting alone. Typically, employment tribunals will send an agenda to the parties for completion and return in advance of the preliminary hearing, which is often used as a checklist to prepare for the hearing and also by the judge during the hearing to ensure that all relevant matters are covered. During a preliminary hearing the judge will set deadlines for certain documents or tasks to be completed in order to enable the claim to progress to the final hearing; these deadlines are known as “directions”.
A hearing bundle contains the documents and evidence relevant to each party's case, which will be referred to by the employment judge during the hearing. Prior to producing the bundle, the parties are required to disclose to each other all relevant documents. All relevant documents must be disclosed and a party cannot withhold a document that may be detrimental to their case if it is relevant and may help to progress matters. The exception to this rule is 'privileged' documents, such as documents between the parties and their legal advisers giving advice. It is usual for the employer to produce the bundle, usually because they, rather than the employee, will have access to the majority of documents and will be more likely to have the resources to produce the bundle available to them. Employment tribunals tend to prefer one bundle, the contents of which have been agreed by the parties. If there are disagreements between the parties about what should and should not be included in the bundle, two separate bundles may be produced, or documents which are not agreed may be expressly highlighted in the bundle index.
Witness evidence can be given in tribunal in support of either parties' case. The employee and all the witnesses for both parties will need to produce witness statements. Typically, the date by which parties need to exchange witness statements will be determined by a judge at a preliminary hearing. Once statements have been exchanged, the tribunal usually does not allow the parties to amend or change any evidence unless exceptional circumstances apply. Both parties will need to explain to an employment tribunal judge the relevance of evidence that a witness will be giving. All witnesses will need to attend the final hearing of the matter to enable them to be cross-examined on the evidence they have given in their witness statement.
Once a claim has been fully prepared and all the directions have been complied with, the case will progress to the final hearing. A final hearing will typically take place in person; however these hearings can be conducted electronically if necessary.
Both parties, and/or their representatives, must attend the final hearing. During this hearing, both parties will put forward their version of events to the employment tribunal judge, put forward arguments as to why their claim/defence should succeed and all their witnesses will give evidence and be cross-examined.
The hearing will be conducted by either one judge sitting alone, or a panel consisting of a judge and two lay members (one usually from a trade union background, and the other from a HR background). The judges required will depend on the matters being pursued in the employment tribunal; for example, an unfair dismissal claim will usually be heard by a judge sitting alone, whereas a discrimination claim may be heard by a panel.
The length of a final hearing will vary depending on a variety of matters such as the complexity of the case and the number of witnesses to be heard. A straightforward unfair dismissal claim, for example, may only be listed for one or two days, whereas in contrast, a complex whistleblowing claim could be listed for five or more days.
Once the hearing is approaching conclusion and both parties have given their evidence and put forward their arguments, the judge will decide if the employee’s claim is successful. This decision is not always made and delivered to the parties at the hearing; it can be ‘reserved’. This means the judge will deliberate and issue their decision directly to the parties and in writing at a later date.
If an employee is successful, the tribunal will also need to consider the award to be issued to them. This may be addressed during the hearing, or if there is not enough time left, then the tribunal may issue a separate remedy hearing to look at the award alone.
In contrast to a civil court where costs follow the event -- that is, where the party that wins the case will be able to seek its legal costs from the losing party -- an employment tribunal does not operate in this way.
Although there are circumstances in which costs can be ordered – for example, if a party has acted 'vexatiously, abusively, disruptively, or otherwise unreasonably' -- this is unusual. Both the employee and employer should continuously consider the cost of bringing a claim in an employment tribunal in contrast to negotiating a settlement agreement.
In conclusion, both employees and employers need to ensure that their claims and responses are articulate and comprehensive when they are submitted to the employment tribunal. They should ensure that sufficient information is included to assist the employment tribunal in progressing matters as swiftly and efficiently as possible.
Should the claim proceed to a final hearing, it is important to remember that both the employer and employee have a duty to disclose all information and documentation, whether or not this assists either case. The obligation to disclose is an ongoing duty throughout the process; therefore, should any further relevant information or document become available, it must also be disclosed.
If you are contemplating issuing a claim against your employer or former employer, you should seek qualified employment legal advice to ensure that you are submitting your claim within the requisite timescales, and to ensure that any claim submitted contains all of the information which you are required to include.
If you have been served a claim by an employee, you should contact an employment lawyer as soon as possible to ensure that your response is issued within the 28-day time limit and that it addresses all of the relevant points to minimise the risk of the response being rejected and/or the defence not being successful due to being improperly pleaded