Last updated: 20th May 2021
Your definitive guide to successfully pursuing a claim at Employment Tribunal
Where it has not been possible to resolve your employment dispute without recourse to legal action, the Employment Tribunal affords you the opportunity to put your case before a judge.
As with any type of legal action, pursuing a claim against your employer can be both stressful and time consuming.
So, we have put together this definitive guide to help you understand what claims can be brought in the employment tribunal, when you qualify to make a claim, the costs and process involved, and what you can expect when your case is scheduled to be heard.
We will also highlight some things to watch out for and what to do next if you feel you have a strong case.
Our no win no fee employment law solicitors have represented many thousands of employees with their employment tribunal claims. Our in depth knowledge of case law has helped individuals just like you get the justice they deserve at tribunal hearings across the UK.
1. What are Employment Tribunals?
Administered by HM Courts and Tribunal Service, an Employment Tribunal is where the majority of cases relating to UK employment law are heard.
Whilst not as formal in nature as other court settings, a tribunal can help you achieve a legal resolution to your matter. Recourse to the tribunal would occur where internal dispute resolution processes have failed, and ‘mandatory’ early conciliation has been exhausted.
What claims can be brought in the Employment Tribunal?
Most claims arising from workplace disputes can be pursued via tribunal. These would most typically include claims relating to:
- Unlawful Deduction of Wages
- Discrimination at work
- Unfair Dismissal
- Constructive Dismissal
- Harassment and Bullying
- Equal Pay
- Wrongful Dismissal
The civil courts would hear employment related cases, such as:
- Breach of contract disputes (including Wrongful Dismissal cases)
- Claims relating to accidents occurring in the workplace
2. Do I qualify to make a claim?
There are 2 very important considerations that can effect whether you qualify to advance your claim at Employment Tribunal. These are, the duration of service with your employer and meeting the strict time limitations that apply to issuing your claim.
Your duration of service
In order to pursue your claim you need to have worked for your employer for at least 2 years, unless your dispute falls within one of the exceptions to this rule.
The following types of claims are exempt:
- Discrimination (Based on a protected characteristic: Gender, Gender reassignment, Age, Race, Disability, Sexual Orientation, Religious Belief, Marriage/Civil Partnership, or Pregnancy & Maternity)
- Unlawful deduction of wages
- Automatic unfair dismissal
If you have been dismissed for any of the following reasons, it could be deemed as an automatic unfair dismissal:
- Taking time off to care for dependants, or to attend to a family emergency
- Reasons relating to: parental leave, pregnancy, maternity, paternity or adoption leave
- Participating in industrial action
- Refusing to join, or being a member of a trade union
- Performing duties as a trade union or employee representative
- Acting as a trustee for a pension scheme
- Taking part in jury service
- You are a part time worker
- You asserted a statutory right
ESSENTIAL FOR YOU TO KNOW
Your statutory rights include:
- Receiving the appropriate holiday pay
- To be paid the minimum wage
- Maternity / Paternity pay
- Flexible working arrangements
- Working to a maximum of 48 hours per week
- Within 2 months of commencing employment, to receive ‘written terms of employment’
- To receive itemised payslips
Even if your claim is exempt from the 2 year rule, strict time limitations for issuing your claim will apply.
To advance your claim at Employment Tribunal you MUST do so within 3 months less 1 day from the matter on which your dispute rests. i.e the date of the last detriment you suffered, or date of your resignation, dismissal or redundancy (your effective date of termination).
PLEASE NOTE: It is very common for employees to fall foul of the time limitations where they have appealed their dismissal. It is the date of your dismissal that starts the clock, not the date of your appeal. An unscrupulous employer could well drag out any appeal procedure to make you ‘out of time’ to advance a claim against them.
3. Are Employment Tribunals free?
You no longer need to pay to advance your claim since fees where deemed unlawful by the Supreme Court in 2017.
Anyone with a qualifying claim can bring an action at Employment Tribunal, and it is your right to represent yourself if you wish.
Whilst you are not obliged to engage a solicitor to represent you, you must be aware that not only can the tribunal process be time consuming and stressful, employment law is very complex and your employer/former employer will almost certainly have legal representation.
So, whilst it does not cost you anything to advance a claim, if you wish to increase your chances of a successful outcome by appointing a solicitor or barrister, costs will be incurred for their time.
At Do I Have A Case, where our employment law specialist solicitors believe you have a viable case, we will look to represent you on a no win no fee basis.
This means you will only pay if we win your case!
Our no win no fee policy has enabled many employees to get access to justice where they may not have been able to under different circumstances.
We are also able to assist under other funding methods such as , Legal Expense Insurance (LEI), fixed fee, conditional fee and private paying arrangements. However, we are first and foremost no win no fee solicitors.
ESSENTIAL FOR YOU TO KNOW
“You will be liable to pay our costs if you lose!”
You may be told this by the other side, but unlike in other courts, you are not automatically liable to pay the respondent’s costs if your employment tribunal claim is unsuccessful.
This is typically used to ‘scare you off’ advancing your claim.
Whilst your employer is entitled to put in a costs order if they win the case, there is a very small likelihood this will be awarded by the tribunal. This generally applies to less than 1% of cases.
Circumstances where costs could be awarded against you
Whilst it is highly unlikely the tribunal will award costs against you, this may happen in a number of situations, including:
- Under the judgement of the tribunal, the respondent made you a satisfactory settlement offer that you unreasonably turned down
- Your behaviour in running your case was deemed bad
- You insisted on advancing a claim that had no chance, despite being advised so by the judge at a preliminary hearing
4. The process for pursuing your claim at Employment Tribunal
Once you have determined you have a viable case and meet the qualifying criteria, it is important that you follow the process of issuing your claim to tribunal.
In line with the Overriding Objective that is established to encourage all parties to resolve disputes without needing recourse to legal action.
So, before you can move forward with your Employment Tribunal claim, you are expected to have participated in your employer’s internal disciplinary and grievance procedures. The Advisory, Conciliation and Arbitration Service (ACAS) offers up some reliable insight into this within their Code of Practice on disciplinary and grievance procedures.
Where these have not been successful, you can then begin the process of advancing your claim.
Early Acas Conciliation
Before you can issue your claim to the Employment Tribunal, you are required to take part in Early Acas Conciliation. This is the first step of the process.
Once you have contacted ACAS to lodge the details of your claim, a conciliator will be appointed to your case. They will contact your employer and attempt to resolve your dispute by way of a COT3 settlement*.
This process halts your time limit for a period of 4 weeks whilst conciliation takes place. If ACAS believe a successful outcome can be reached, they have the option to extend this for a further 2 weeks.
Equally, if it appears that your dispute will not be resolved via conciliation then the process can be halted at any time.
You are not obliged to accept a COT3 settlement and can choose to reject it and move forward with your employment tribunal claim.
If your dispute cannot be resolves you will be issued with a numbered ACAS certificate, which you will need to submit your claim to the Employment Tribunal.
* A COT3 settlement should not be confused with a settlement agreement. As it is administrated by ACAS it does not require the same ‘mandatory’ legal oversight of a settlement agreement. Our settlement agreement page gives more detail.
You can now move forward with issuing your claim at tribunal.
To submit your ET1 form you will need to include your ACAS certificate number and your ‘particulars of claim’ or grounds of complaint.
Once submitted the tribunal will review your claim and if it is accepted, they will then contact your employer/former employer (the respondent) to notify them of your claim. The respondent will be given 28 days to submit their response by way of an ET3 form, which sets out their position.
Once received, the details of your case will be passed to an employment tribunal judge who will decide whether it should be heard, struck out, or is outside of the jurisdiction of the tribunal.
The initial findings of the judge will then be sent in writing to both parties. If the case is to be heard, the judge will give directions to you (as the claimant) and the respondent to either prepare for a preliminary or final hearing.
Preliminary hearings are common in complex cases to discuss points of law and details of the case. Both yourself and your employer/former employer can also request for a preliminary hearing to be scheduled.
In more straightforward cases, you are likely to be given a hearing date and confirmation of what needs to be done in advance.
A deadline will be set for ‘disclosure’. This is where both parties will submit all documentation for review before the final hearing date. Typically, this will involve you providing documents such as a schedule of loss or witness statements. In essence any and all documents relating to your case.
Again, appointing an employment law solicitor to run your case will really help in this. Many claimants find the amount of paperwork and preparation for trial overbearing and very stressful.
5. What to expect at Employment Tribunal
The setting for an Employment Tribunal is not as daunting or formal as a normal courtroom. There will be no wigs or gowns and your case is likely to be heard in a dedicated tribunal room within an office building.
You must appreciate that whilst they may be less formal in appearance, you will still be giving your evidence ‘under oath’, you will be expected to dress smartly, and poor conduct or disrespect for proper procedure will not be looked upon favourably by the judge.
Typically, there will be 3 judges hearing your case. One will be an employment judge alongside two lay judges. One lay judge will be from an employee centric organisation such as a trade union, whilst the other will be employer centric.
In some situations, a case can be heard by just an employment judge.
ESSENTIAL FOR YOU TO KNOW
Coronavirus: What it means for tribunal hearings
Coronavirus has had an effect on the number of hearings that have been able to take place during the lockdowns and restrictions of 2020 and 2021.
As such, there have been delays in cases being scheduled for tribunal hearings.
Under normal circumstances it could take 6 to 12 months for your case to be heard, but you need to be aware that it may take longer due to the impact of the COVID-19 pandemic.
As a result of coronavirus, technology is increasingly being relied upon to conduct ‘hybrid’ or ‘fully remote’ Employment Tribunal hearings.
What to do next if you want to pursue a claim at Employment Tribunal
Our employment law solicitors are here to help you achieve success at tribunal.
If you believe you have a case please speak to one of our knowledgable and friendly team today. We can give you a preliminary assessment of your claim and advise on your best course of action.
Call us now on 0800 014 8727 or 020 3923 0888. Or, if it is more convenient, you can submit your details via our 24/7 online enquiry form. We will then come back to you via email, text or phone within 48 hours.