Taking your employer to an Employment Tribunal is obviously a daunting prospect. It will be your last resort, having first tried to resolve your concerns through your employer’s internal procedures.
In fact, you must exhaust your employer’s disciplinary, grievance or other similar procedures first before making a claim. Otherwise, even if an employment tribunal decides that you have been treated unfairly, your compensation could be reduced by up to 25% if you didn’t first start by using your employer’s procedures.
Employment tribunals perform an exceptionally important role, serving as:
- A discipline upon your employer to treat you fairly through its internal policies and procedures. Otherwise, getting embroiled in tribunal proceedings can be very costly in respect of the preparatory time involved, reputational damage, legal costs and the prospect of having to pay you compensation. Furthermore, if your employer doesn’t comply with ACAS guidelines, it could be required to pay you up to an extra 25% compensation.
- Leverage for you or your representative to secure financial compensation without the need to actually attend an employment tribunal hearing. This would typically be formalised in a Settlement Agreement. In many cases, this only becomes a realistic prospect once you have triggered legal proceedings – and can sometimes happen very late in the day in the form of a last minute settlement.
- An opportunity for you to be awarded compensation. That is if you eventually attend and win at an employment tribunal hearing.
To maximise your chances of a success, you must be well-prepared. That means setting out your case clearly and persuasively, and following all necessary company and ACAS procedures.
Since July 2017, you no longer have to pay an application fee to make an employment tribunal claim.
Can I commence employment tribunal proceedings?
There are different time limits that apply to when you can make a claim to an employment tribunal.
In the case of Unfair Dismissal, or to claim that your employer is acting in breach of your contract, you must ordinarily:
- Have completed two years’ continuous employment with your employer, and;
- Commenced proceedings within three months (less a day) of the event you are complaining about. In the case of dismissal, this is from the date your contract was terminated.
Fail to meet these requirements and the chances are you won’t be unable to make a claim against your employer.
What is an employment tribunal?
Employment tribunal hearings normally consist of a panel of three people: an employment judge and two lay members. The latter are representatives of employer and employee organisations (e.g. the CBI and TUC). Sometimes, the employment judge might sit alone.
Hearings are usually held in office blocks rather than formal court buildings.
The most common cases taken to Employment Tribunal are:
- Unfair Dismissal
- Wrongful Dismissal
- Asserting other employment rights
Other cases, such as contractual matters, can be addressed through the civil courts. This includes the Small Claims Court where the amount at stake is under £10,000 (£5,000 in Scotland).
Employment tribunals are supposed to provide easy access to justice. Therefore, whilst it is recommended that you are represented by a solicitor or union official (like that provided by WRS), you can nevertheless choose to represent yourself.
Parties normally meet their own legal costs. However, in certain circumstances – where a party is considered to have acted unreasonably – costs may be awarded against the complainant (employee) or respondent (employer).
What should I consider before pursuing an employment tribunal claim?
Taking your employer to an employment tribunal should always be treated as a last resort. You should bear in mind:
- It takes a long time to reach an employment tribunal hearing; typically over six months from when you submit your claim.
- It can be time-consuming and stressful – especially if you are proceeding without professional support.
- The amount of compensation can be reduced by up to 25% if you fail to follow ACAS requirements in the run-up to commencing legal proceedings.
- Your compensation may also be reduced if the employment tribunal believes you share significant responsibility for the situation arising.
- If you are claiming compensation for lost earnings, the amount you may be entitled to will be reduced if you find another job (and you must prove that you have been actively looking).
- You may not succeed.
It is therefore important not to consider an employment tribunal as your first option. It should be your last resort, after having exhausted all other avenues. And ideally with professional support, guidance and representation.
Of course, beginning or threatening legal proceedings may persuade your employer to reach a compromise with you. This would be through what is known as a Settlement Agreement.
What is the process for making an employment tribunal claim?
There is a fairly standard process for making an employment tribunal claim:
1. ACAS early conciliation.
Before any claim can be submitted, you must first complete and submit an Early Conciliation Notification Form to ACAS. Doing so will ‘stop the clock’ regarding the strict time limits applying to each type of complaint.
The form can be downloaded over the internet and provides ACAS with contact details for yourself and your employer. ACAS will then get in touch with you to better understand your concerns. It will explore whether agreement can be reached with your employer, without the need for an employment tribunal hearing. ACAS has a month to attempt to negotiate a settlement, if both you and your employer are willing to give it a try. If agreement is reached then this is recorded in what is known as an ACAS COT3 Settlement Agreement.
Only once you have completed this Early Conciliation stage, and no settlement is reached, will you be issued with an Early Conciliation Certificate by ACAS. This will provide you with the unique reference number that is required to continue the employment tribunal process.
2. Submission of employment tribunal claim form, ET1
You must complete and submit the Employment Tribunal’s Claim Form, ET1, to formally submit your claim. In this you will provide:
- Contact details for yourself and your employer
- ACAS’s Early Conciliation Certificate Number
- Details on your job, earnings and benefits
- Your type of claim
- Details concerning the nature of your complaint
- The outcome you are seeking (reinstatement, reengagement and/or compensation)
- Financial details to calculate compensation due
- Your representative’s details where appropriate
You can download a copy the ET1 Form here.
You can complete this yourself. But you will significantly increase your chances of success if it is completed on your behalf by your solicitor or representative of a union – such as one arranged by WRS.
3. Employer’s employment tribunal response form, ET3
Your employer will be sent a copy of your ET1 by the court service.
To defend your case, it must respond to the employment tribunal by completing and submitting its own Response Form, ET3. It has 28 days within which to do this.
You will be sent a copy of your employer’s ET3 form. Then you will understand what arguments your employer will present to resist your case and justify its own conduct.
4. Preliminary hearing
Often completed by phone, the tribunal judge appointed to hear your claim will seek clarification on you and your employer’s respective arguments (as detailed in the ET1 and ET3).
He or she will then provide directions on what both parties need to prepare ready for the full Hearing, and decide how much time will need to be allocated to complete the Hearing.
Only sometime after the Preliminary Hearing will you be told the date upon which the full employment tribunal hearing will take place.
5. Schedule of Loss and all relevant documentation.
By a set date before the full Hearing, you must produce a calculation of the losses you will be seeking compensation for if your claim is successful.
Both you and your employer will also have to exchange all documentation which may be referred to during the Formal Hearing. This is combined into what is known as a Joint Bundle of Documents.
You, your employer and the Employment Tribunal Panel will then have all the same papers that may be used as evidence during the full Hearing.
6. Exchange witness statements.
You and your employer will be required to exchange your respective Witness Statements. These will detail the arguments being deployed by each party at the full employment tribunal hearing.
This is arranged for a set date and time determined by the employment tribunal. Witness Statements are simultaneously exchanged, so that neither party can change their submission after reading the other party’s detailed arguments and points of law.
7. Formal Employment Tribunal Hearing.
The Formal Hearing will be held at the employment tribunal building.
Here is where you, your employer’s representative and any other witnesses can be questioned by each party and the Tribunal Panel.
Both you and your employer will make opening statements, based on your respective witness statements. There will follow a cross-examination by the other party. Witnesses may then be re-examined by whoever called them. Witnesses called by you or your employer will then go through the same process.
Once all the evidence has been thoroughly examined, you and your employer can make closing statements.
It is always important that you remain calm, measured and polite when attending an employment tribunal.
You can either complete all these steps yourself, or ask your representative to assist you with them.
When will I receive a decision?
A decision on your case could be given on the day, once the Employment Tribunal has had an adjournment to deliberate on all the evidence presented to it. Or it could be delayed for up to several weeks. The outcome will be confirmed in writing.
If your case is upheld, the employment tribunal’s proposed solution is known as the ‘remedy’. This could consist of financial and/or non-financial components. It will be influenced by what outcome you said you were seeking in your original ET1 Claim Form.
The employment tribunal will produce written reasons for its decision.
How much compensation?
Before you begin employment tribunal proceedings, you should be aware that in many cases the amount of compensation is modest. It is influenced by your salary, amount of loss, degree of fault by your employer, and whether you share any culpability. It can also be adjusted up or down by upto 25%, depending on whether you or your employer failed to follow the requirements of the ACAS Code of Practice.
The amount of compensation that you might be awarded for an Unfair Dismissal case is calculated in two parts: one based on a set formula and the other to compensate you for your loss.
This is calculated on the basis of a fixed formula. You can calculate it yourself here by using the government’s ready reckoner. It takes into account your length of service, age and gross weekly pay. However, the amount taken into account for your service is limited to 20 weeks, and your weekly pay is capped at £508 (for the tax year 2018-19; equivalent to an annual salary of £26,416).
The Basic Award is calculated on the same basis as Statutory Redundancy Pay. For up to a maximum of 20 years service, you can claim:
- 1.5 weeks’ pay for each year completed when you were 41 or over
- 1 week’s pay for each year between ages 22 and 40
- Half a week’s pay for each year when you were 21 or younger.
The employment tribunal can adjust the amount you receive if it considers you have unreasonably refused an offer of your job back, if your own conduct has been at fault, or if you have already received Statutory Redundancy Pay.
This is an additional award, intended to compensate for your actual financial loss as a consequence of being unfairly dismissed. It takes into account:
- Your financial losses as a consequence of your dismissal up until the date of the Tribunal. This will be adjusted for any income you have since earned.
- How long you can reasonably expect to be earning less than you were previously, whether in the job you are doing now or until you find a new job. You will need to evidence to the tribunal that you have been seeking to minimise your losses by applying for appropriate new jobs.
- Compensation for loss of statutory rights, which covers the period of two years before you acquire rights to claim unfair dismissal in a new role.
- Any adjustments required because either you or your employer didn’t follow proper procedures.
There is a statutory cap for Compensatory Awards for unfair dismissal. This is £83,680 or one year’s gross salary, whichever is the lowest.
WRS can assist you in calculating what your Basic Award and Compensatory Award should be.
How much do employment tribunals typically award?
During 2016/17, a total of 88,476 tribunal applications were submitted. For a variety of reasons – including settlements reached before a hearing – many never reached a formal employment tribunal hearing.
Of those that did, the table below shows both the number and amounts of awards made at formal Hearings:
Employment Tribunal Awards, 2016/17
|Sexual Orientation Discrimination||4||£8,460||£6,026|
Since these latest figures were collated, the number of claims have dramatically increased. This is because tribunal fees that were in place at the time to dissuade claims, were subsequently ruled unlawful in July 2017.
What factors influence my chances of success?
If your case has been allowed to proceed to a formal employment tribunal hearing, it must have been agreed at the earlier stages of the process – in particular the Pre-Hearing Review – that you may have a legitimate case, subject to the Tribunal Panel assessing the facts.
The quality of evidence you submit to the employment tribunal will therefore be of key importance. This is where WRS’s support will be critical. You will be relying upon:
- Your version of events being consistent at every stage of the tribunal process
- The consistency, quality and credibility of evidence supporting your case. In particular: your initial Disciplinary Appeal/Grievance Letter; your Written Statement submitted to Formal Hearings with your employer; the written record of your Formal Meetings; and your ET1. WRS can help ensure this is all of the highest standard.
- Other evidence presented on your behalf.
- How convincing you are when questioned at the Tribunal Hearing
We have published posts on preparing for grievance and disciplinary hearings, explaining how best to strengthen your case. We have also explained how WRS can provide union representation at meetings, even if you have not previously been a trade union member.
Weighing up the evidence provided by you and your employer, the employment tribunal will then be required to make an evidence-based judgment and determination. This will be both on the legal issues and whether or not your employer acted reasonably in the circumstances relating to your case.
What if either I or my employer decide to appeal?
If you or your employer are dissatisfied with the employment tribunal’s findings your case can be referred to an Employment Appeal Tribunal (EAT). This must be on the belief that the Tribunal Panel either misapplied the law or reached an unreasonable decision given the facts.
Before doing this, you have 14 days from the date you received the decision to provide good reasons why you believe the employment tribunal should reconsider its decision.
To proceed to Employment Appeals Tribunal, a valid Notice of Appeal must be submitted by no later than the 42nd day after the employment tribunal produced the written reasons for its judgment.