An Employment Tribunal is a dedicated judicial process designed to remedy disputes between employers and employees. Distinct from the court system, employment tribunals enable employment disputes to be resolved more quickly and at a lower cost than standard litigation.
While some employment disputes, such as breach of contract claims worth over £25,000, can be heard in the civil courts, the vast majority of employment disputes should be resolved via the tribunal system.
How Do Employment Tribunals Work?
Typically, each case is heard by an Employment Tribunal Panel consisting of an Employment Judge and two lay members but a single Employment Judge may hear the case in some instances. The tribunal is designed to enable each party to put forward their claim and corresponding defence (known as a response). Following this, the Judge or Panel will issue a binding decision which may include a financial award, reinstatement or re-engagement.
However, the Employment Tribunal process is complex and there are many steps to undertake before you arrive at a Full Hearing. The procedural aspects of the Employment Tribunal process are critical, so it’s vital that both parties adhere to them, or they risk their claim, response or evidence being thrown out or disallowed.
The Employment Tribunal Process
1. Early Conciliation Scheme
This a mandatory scheme designed to encourage parties to resolve the dispute without resorting to a tribunal. A claimant must submit relevant information to the Advisory, Conciliation and Arbitration Service (ACAS) within three months minus one day of the issue which caused the dispute. It is important to note that the official time limit for making most tribunal claims is also three months minus one day.
However, if the Early Conciliation Scheme process begins within this timeframe, it effectively ‘stops the clock’ and enables both parties to explore early resolution without losing the right to go to a tribunal.
As a neutral third party, ACAS will communicate with both parties and help them resolve the dispute and enter into a legally binding resolution agreement without the need to go to a tribunal. If an agreement cannot be reached or either party does not wish to engage in the conciliation process, ACAS will issue an ‘Early Conciliation Certificate’.
2. Issuing a Claim
A claimant has a minimum of one month from the date of the Early Conciliation Certificate to issue a claim. In some cases, the time limit might be slightly longer.
A claimant submits a claim via an ET1 form which outlines their complaint. The tribunal will assign a case number and send a copy of the ET1 claim form to the respondent (employer).
3. Submitting a Response
The respondent then has the opportunity to submit a response to the Employment Tribunal. This is done in writing via an ET3 form and must be submitted within 28 days of receiving the claim form.
4. Key Stages
At this stage, the tribunal decides what the next step in the process should be. In most instances, a preliminary hearing will be scheduled so that ‘case management directions’ can be given.
This involves setting out a timeline for the disclosure of evidence, submissions of a schedule and counter schedule of loss, exploring the possibility of resolving the issue via alternative dispute resolution (ADR) and the date of the full hearing.
i. Schedule of Loss
One of the Tribunal orders will be for the claimant to prepare a Schedule of Loss setting out the financial value of their claim. This should be completed as early as possible and can be prepared in advance of the early conciliation.
A Schedule of Loss will provide the respondent with an idea of the value of your claim and may lead to an early settlement. It is always open to the claimant to amend the schedule later on or for the respondent to prepare a counter-schedule.
ii. Disclosure of Documents
Both the claimant and respondent have a duty to disclose all documents and other information that are relevant to the matters being tried by the tribunal. As well as emails and notes, this could include data such as CCTV, log in records or similar.
The information is collated into a list and sent to the opposing party who may then request copies of those documents and information. In most cases, the parties will prepare lists and exchange them simultaneously, providing copy documents at the same time.
5. Preparation of a Joint Bundle
A ‘bundle’ contains all of the documents the parties wish to rely on (or refer to) at the full hearing, as well as the relevant claim forms that have been submitted. The preparation of a joint bundle means that a single bundle will be collated from both parties’ documents, with copies made available so that each party’s legal representative and the panel have access to the same materials.
6. Full Hearing
At the hearing, both parties will make submissions about the claim(s) and witnesses may be called to give evidence. Throughout the hearing, both parties can refer to documents in the bundle to evidence their submissions.
7. Decision
After hearing submissions from both parties and relevant witness evidence, the tribunal will come to a decision. In most instances, a decision is made on the same day as the hearing and given orally, with a written copy sent to both parties.
8. Remedies Hearing
If the tribunal finds in favour of the claimant, a remedies hearing is held to determine what remedy will be enacted. Often, a remedies hearing will follow a full hearing but, if there is not sufficient time, a subsequent hearing can be scheduled.
9. Reviews and Appeals
In limited situations, the ‘losing’ party can make an application for the decision to be reviewed by the tribunal. Additionally, a party may decide to appeal to the Employment Appeal Tribunal (EAT) but this is only permissible if the panel made an error in law when deciding the case and if the appeal is lodged within 42 days of the judgment being made.
Preparing for an Employment Tribunal
As shown above, the tribunal process is complex and numerous procedural requirements must be met. Failure to properly substantiate a claim or defence or failure to adhere to the relevant timelines can have grave and costly consequences, so it’s vital to seek legal advice swiftly. With support and guidance from our expert employment solicitors, you can:
1. Assess the validity of a claim
With in-depth knowledge of statutory regulation and case law, our experienced team can help you determine the validity of the claim.
2. Identify inconsistencies in your opponent’s account
It’s not uncommon for factual errors and discrepancies to arise in a claim or in the response. Often these inconsistencies can weaken a case and give you an advantage when it comes to negotiating a settlement or securing a judgment in your favour.
3. Comply with procedural requirements
Detailed knowledge of the employment tribunal process is required to ensure you don’t miss key deadlines and our dedicated team is on hand to manage all aspects of your case. From advising which documents should be disclosed to preparing witnesses ahead of the hearing, we can ensure you’re fully prepared for every eventuality.
4. Determine the commercial impact of a claim
When a claim goes to an employment tribunal, it becomes a matter of public record, and the details of a claim can have an adverse effect on either party’s reputation. Regardless of the merits of the claim, this is something you should take into consideration when deciding whether to settle a claim or go to a hearing.
5. Reach an early settlement
Although early conciliation ends prior to a claim being issued, it is still open to either party to offer a settlement through ADR, ACAS or by a direct “Without Prejudice” discussion with the other party to reach an agreed settlement. The terms of settlement will be set out in an ACAS “COT3” document or in a settlement agreement. The opportunity to settle continues throughout the life of the claim.
It is always worthwhile considering settlement, whether it’s via the Early Conciliation Scheme or later in the proceedings. Resolving a dispute early can reduce the burden on the parties in terms of financial expenditure and preparation and hearing time.
6. Dealing with your Tribunal matter
If a claimant is successful at an employment tribunal, the respondent employer can suffer financial and reputational harm. According to recent statistics, the average award for an unfair dismissal claim is £13,749, while the average award for a sex discrimination claim was £53,404.
With effective legal representation, however, you can strengthen your case, and increase the chances of achieving a successful outcome or a favourable settlement.
Contact Heald Nickinson Today
To find out more or to seek legal advice from our expert employment solicitors, contact us now on 01276 680000 or send us a message via our online form.
