An employment tribunal is a type of court that deals with disputes between employees and their employers. These disputes can be about unfair dismissal, discrimination, or breach of contract. If you're an employee who your employer has mistreated, you may be able to make a claim against them in an employment tribunal.
The first step in making a claim is to send a letter of claim to your employer, outlining the issue and what you're claiming for. If your employer doesn't respond or doesn't offer to resolve the case, you can take your claim to an employment tribunal.
If you're considering making a claim, you must get expert advice first. This article will explain everything you need about employment tribunals, including the claims process and what you can claim for.
Table of contents
- What is an employment tribunal?
- How does a full tribunal work?
- Are any types of claims that can be brought to an employment tribunal?
- Unfair dismissal
- How do I prepare to make a employment tribunal claim?
- What should you expect at the Tribunal procedure?
- How do employees start and respond to a claim?
- The Tribunal hearing
What is an employment tribunal?
An employment tribunal is a court that deals with employment-related disputes. It can include employment disputes between employers and employees or between employees and unions. Tribunals are often used to resolve disputes that cannot be resolved through negotiation or mediation.
If you have an employment-related dispute, you can file a claim with an employment tribunal. This can be done by filing a complaint with the Tribunal directly or going through an employment tribunal lawyer.
Tribunals will usually hear cases that involve issues such as unfair dismissal, redundancy, or discrimination. You can consult with an employment lawyer if you are still determining whether your case is eligible to be heard by a tribunal.
How does a full tribunal work?
Full tribunals require employment judges to have at least seven years of experience and lay members appointed from both sides of the industry (for example, an employer and a trade union official). Employment judge lead the proceedings, advise lay members of the law, and render decisions. Lay members are equal to judges and have the power to overrule them, but this rarely occurs. Currently, unfair dismissal cases must be heard by a full tribunal, but judges will sit alone from April 6 2012.
Are any types of claims that can be brought to an employment tribunal?
Employers may file claims with employment tribunals for a variety of reasons, such as:
- Disputes over equal pay;
- Whenever your employer breaches your contract of employment or terminates you unfairly as part of a redundancy procedure, your dismissal was unfair;
- It is prohibited to discriminate based on disability, sex, race, age, sexual orientation, gender reassignment, divorce, marriage, maternity, religion, or belief.
Employment tribunal proceedings can be brought by employees, workers, and job applicants rejected at the recruitment stage (referred to as claimants). The employee or worker must have served a certain amount of time to bring a claim for unfair dismissal.
Since April 6 2012, those starting a new job on or after that date are now required to have two years of service before they can be unfairly dismissed. Previously, it was one year, but after that date, it is two years.
How do I prepare to make a employment tribunal claim?
There is a lot of complex legislation dealt with by employment tribunal claims. Complex rules govern the procedure as well. Planning is necessary even in the simplest cases. In preparation, you will compile a bundle of documents to be used at the hearing, draft witness statements, prepare cross-examinations, and prepare closing arguments. Furthermore, tribunals differ from region to region.
Employment tribunals have also implemented strict time limits in recent years. If these timetables are not followed, severe consequences will result. It is also possible to incur high costs, waste management time, and generate adverse publicity through a tribunal claim. It is also difficult to appeal decisions.
What should you expect at the Tribunal procedure?
A copy of the Tribunal claim form (referred to as Form ET1) is sent to the Respondent after the claim has been issued online.
A reply to your claim must be submitted within 28 days by the Respondent (called Form ET3). After the ET3 has been prepared, a copy is sent to the Claimant or their representative. Respondent's response to the claim is set forth here, along with their rationale for defending the claim.
The Tribunal may list a case for a Case Management Hearing (called a CMD) as soon as possible if it involves discrimination or something other than straightforward Unfair Dismissal or Breach of Contract. No evidence will be presented at this hearing since it is not a substantive hearing. The Tribunal will draft a list of the issues in the case after the hearing. Instructions about the timeline for the case to reach a final hearing will be issued.
There are several possible directions, including:
Disclosure of documents;
The preparation of an agreed hearing bundle;
The exchange of witnesses' statements.
Disclosure of documents
The process of sharing all relevant documents between the parties about any issues discussed in the case is known as document exchange. A list of disclosures usually accompanies it. The party must disclose all such documents, whether they aid or hinder their case. The law prohibits you from selectively burying documents and omitting to reveal them if you think they might hurt your case.
Agreed to a paginated bundle
A bundle of documents must be agreed upon between the parties, paginated and indexed. This bundle should include both parties' disclosure documents, the Tribunal's claim, the Defence, and the Tribunal's order. Respondents or their representatives typically prepare this document.
The exchange of witnesses' statements.
The parties will be required to prepare typed witness statements for each of their witnesses at the hearing to support their arguments. Witnesses must prepare pre-prepared statements expressing their intent to testify under oath.
The statement should include all evidence that the witness can provide. This is because the Tribunal usually accepts the statement as read and does not allow the witness to provide additional information. The bundle must also contain a pagination number to cross-reference any documents. Witness statements will be exchanged between both parties before the final hearing.
The parties are always aware of what their opponents will say so that they can prepare accordingly. There is an opportunity for both parties to stake their positions before the hearing and reach a settlement.
ACAS (Advisory, Conciliation and Arbitration Service) is an independent government body that assists parties in seeking a resolution of a dispute without the need for them to attend an employment tribunal hearing.
ACAS will contact the parties after the Tribunal has deemed the claim valid and offer their services to assist the parties in resolving the claim. It is ACAS' role to remain neutral. Those who are not represented, however, will be provided with information. It will enable them to understand better the system and what they need to do for a successful settlement.
Employers benefit from the settlement of a matter when it involves business efficiency and avoiding adverse publicity. Furthermore, it is cheaper than having a hearing and receiving a judgment. Additionally, settlements don't require social security recoupment and can include agreed references.
Settlements benefit the claimant because they reduce costs and avoid the trauma of a hearing. Settlements are only legally binding to the extent that the parties do not contract out of their statutory rights under the law.
It is possible to settle the proceedings at any time. The hearing can even begin at the door. It is unlikely that ACAS will be involved in cases resolved by the Tribunal. In this case, it would be up to the representatives and their clients to agree to the settlement terms and then inform the Tribunal.
How do employees start and respond to a claim?
Employees (known as 'claimants') should follow a few pre-claim steps before filing their claim:
Checking the time limits for bringing a claim, although a time extension may be granted in certain circumstances.
When a dispute arises, the employee typically participates in the employer's grievance procedure.
Follow the procedures described in the Acas Code of Practice for discipline and grievances. Both employees and employers must follow this code.
The employer's procedures must be followed when an appeal is made.
In the absence of a tribunal claim, Acas may be able to help resolve the dispute through voluntary 'early conciliation'.
Receiving a conciliation certificate to prove that ACA helped the parties come to a resolution but failed.
When the employee has followed these steps, they can submit a claim form (Form ET1) to the employment tribunal if they wish to pursue a claim.
When the Tribunal receives a claim form, it creates a claim log, sends a copy to Acas and provides a copy of the report to your employer (the 'respondent') along with a response form (Form ET3).
There are 28 days for the respondent to complete and return the form to the Tribunal. If necessary, legal advice is critical for employers when dealing with the response form. If the document is not returned in time, a default judgment may result, and the employer cannot challenge the claim. An employer can request a time extension from the Tribunal, but there's no guarantee that the extension will be granted.
The employer summarizes its main arguments in its response. Avoid hiding important information from the employee during the hearing, so they are surprised. The Tribunal could penalize an employer by imposing costs or declaring the late information inadmissible.
Possibly, a preliminary hearing will be held to explore the matter further in the future. In the end, the case will be heard in full. A tribunal's office sends instructions outlining the process for preparing a case so that everything runs smoothly. This is known as giving directions. Document exchange dates and witness statements are examples of directions. In addition to the hearing date, rules specify other relevant deadlines.
The parties need to cooperate in ongoing cases due to the COVID-19 pandemic. There may also be changes in the distribution of electronic bundles of documents. This may involve shortening the topics in a case so that the hearing will take less time. Other alternatives include judicial mediation, which can be conducted via telephone or video. Employers must obtain witness statements early when hearing dates are delayed so that their memories don't fade. There may be less preparation involved in judicial mediation than in a tribunal.
Employment tribunal fees
Tribunal claims do not require employees to pay any fees. In 2017, the Supreme Court declared fees unlawful.
An employee may bring a tribunal claim within three months of termination. There may be a three-month limitation on some claims, such as discrimination claims, as the act complained about is within that period. There is a six-month time limit for redundancy payments, for example.
In certain circumstances, an additional 14 days are allowed for conciliation by ACAS. No tribunal claim can be filed during the conciliation period of three to six months.
The Tribunal hearing
Claims not settled or withdrawn come before the Tribunal for a formal hearing.
Types of hearing
There are two main types of hearing:
Preliminary hearing: a hearing before a full hearing to address any issues before the case proceeds to trial. As an example, there could be disagreements over whether a claimant was an employee and would be able to file for unemployment benefits.
Full hearing: when all the evidence is heard.
Both parties must prepare for a full hearing by:
Exchange all relevant documents related to the claim. Contracts, letters, emails, meeting notes, and other paper or computer-generated records may be included in these documents even if they aid the other party's case. During the hearing, both sides must agree on the documents, which will be bundled in one package. Usually, the respondent puts the bundle together. The bundle must have a contents page, numbered throughout.
There will be a request for witnesses to prepare witness statements for the hearing. In the witness statement, documents are often referred to, and every paragraph should be numbered.
Attendance at the Tribunal, whether in person or via video, must be on time for all parties and witnesses.
Employment Judges usually set out the key issues at the hearing and look at any preliminary matters. It is common for witness statements to be filed and taken as read.
In the absence of an order from the Tribunal, the witnesses are considered chief witnesses. Judges may ask witnesses to read their statements or clarify some crucial passages. In addition to reading their statements or answering questions from the other side, each witness takes an oath. Also, the judge may ask questions.
After all, witnesses have testified, the other side's witnesses are called. In most cases, the Tribunal will adjourn or give its decision right away after both parties have 'summarized' their arguments.
Judges manage proceedings according to their preferences, and tribunals keep hearings brief.
A judgement (also called a decision) is only sometimes handed down on the day of the hearing, depending on the time available.
Depending on the type of claim, the Tribunal can award the following if the claimant wins the case:
Reinstatement (getting one's job back).
Employee re-engagement (returning to the organization in a new role).
Amounts due to the employee, such as wages.
The process of re-engagement and reinstatement is rare.
Can the issue be resolved before going to an employment tribunal?
It is crucial that any problems are resolved before they reach this stage, as going to the Tribunal can be a stressful experience. The Advisory, Conciliation, and Arbitration Service (ACAS) will contact you if someone wishes to bring a claim against you (ACAS). As a first step to resolving the issue, ACAS will facilitate early conciliation between you and the other party.
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