The Journey Through the Employment Tribunal
Employment Tribunals
An Employment Tribunal is an independent judicial body that resolves disputes between employers and employees. Some cases will be decided by an employment judge alone, but in others the judge will be joined by a representative of an employers’ organisation and a representative of an employees’ organisation.
While tribunals are less formal than a court, evidence is still given under oath, and most tribunals are open to the public.
Do all employment law claims go to tribunal?
No. In most cases parties are obliged to apply to Acas for Early Conciliation, which may help to resolve the dispute.
If Early Conciliation cannot resolve the matter, a ‘settlement agreement’ may be reached at any time before the tribunal hearing. However, there is never a guarantee that a settlement agreement will be reached, so you should be prepared for the possibility that your case will go to a tribunal.
The process of taking a case to tribunal
Don’t worry if this looks like a lengthy or complicated process. Spencer Shaw Solicitors can represent you whether you are a claimant (the person making a claim) or a respondent (the person a claim is made against). We can guide you through each step, manage the paperwork, liaise with the other side, support you in gathering evidence and represent you at the tribunal hearing.
Early conciliation
Claimants must notify Acas before making a claim to a tribunal. There are a few exceptions, but generally most people are required to go through Early Conciliation to try and resolve the problem before pursuing a legal claim.
Deadlines
In most cases, the deadline for making a claim to a tribunal is three months less one day from the date of the issue. Appealing against a dismissal does not alter this deadline, so it might be sensible to get advice during the appeals procedure in case your time runs out. The time limit will be extended to account for the time taken by Acas Early reconciliation.
ET1 form
To start a claim, the claimant must fill in an ET1 form to describe their claim. This is the first document the tribunal will read so it is important to set out the claim clearly. The ET1 form must be received by the tribunal, not just posted, by the deadline for making a claim.
ET3 form
A copy of the ET1 form will be sent to the respondent who, in most cases, has 28 days to respond. They respond with a form called an ET3 to set out their case. If they do not respond the tribunal may make a ‘default judgement’ in the claimant’s favour.
Evidence
It is important to have evidence to support your claim, or response, especially if you disagree with something that the other party has stated. You should gather anything concerning your employment and the central issue. This could include:
Your contract, especially if the claim relates to something specified in your contract. For example if you are claiming, or facing a claim, for wrongful dismissal or breach of contract.
Letters, emails or any other communication about the problem.
If you are claiming for losses, you should gather proof of these losses or expenses.
If you are claiming for loss of earnings, you will need to show that you have been searching for another job.
We can help you to work out what information you need to find, and what is relevant. The more information you have available, the better we will be able to evidence your case.
All relevant evidence will be put into a ‘bundle’ (a file of documents for the tribunal to reference during the hearing). Ideally, both parties will agree on what goes into the bundle.
Disclosure
The other party may possess the documents that you need as evidence, in which case you may need to request access to these documents. The tribunal will order disclosure as part of the case management process. If you believe that not all of the relevant documents have been disclosed, you should request them. If the other party does not provide them, you can apply to the tribunal for an order that the other party must disclose the documents.
The tribunal can instruct either party to provide information, but will only do so if they think the request is reasonable and relevant.
Witness statements
Witnesses, including the complainant and respondent, will make a written statement to the tribunal. These statements are evidence, and so it is crucial that they be clear, accurate and relevant. Witnesses will be asked to approve the statement under oath before being questioned about their evidence.
These statements are given to the other party in advance of the tribunal so that each side has the chance to prepare questions and responses. The tribunal will set a date for both parties to share their statements – it should be done at the same time so that the other side isn’t able to change theirs after they’ve seen yours. Once statements have been exchanged you will not be able to add to or change your evidence without a very good reason, so it is important to get the statement right.
You should only ask colleagues to be witnesses if they saw something relevant to the dispute. Tribunals are not interested in character witnesses. Witnesses will need to come to the tribunal hearing to answer questions about their evidence. Just providing a written statement is usually not enough.
Witnesses may be reluctant to get involved in a workplace dispute in case it affects their employment. You can ask the tribunal to make an order that the witness must attend. You will need to write to the tribunal explaining why you think this evidence is important, and the reason the witness does not want to attend. If the witness is ordered to attend the tribunal, you may have to pay their expenses.
Preliminary Hearings
You may have a preliminary hearing to make arrangements for the tribunal hearing. This is usually if your case is complex or about discrimination.
Preliminary hearings are used to decide the issues in question and make case management orders. They can also be used to decide a preliminary point, such as whether a claim is out of time, whether a claim or response should be struck out, and (if the claim appears weak) whether the claimant should be ordered to pay a deposit.
At a preliminary hearing you will set a schedule of dates, including when to swap witness statements and when the hearing will be. You will also discuss which evidence can be used and decide whether to have a Judicial Assessment.
Judicial Assessments
In a Judicial Assessment, a judge will informally assess the strength of the case, and how much compensation might be awarded. This will be based on the ET1 and ET3 forms and what is said at the preliminary hearing, if you have one. The judge will not examine evidence or hear from witnesses to make an assessment.
If your case is strong, the other party may consider settling the case. Having an idea of the strength of your case and the amount you might win will help you to negotiate a settlement. However, your case may be weaker than you thought, or the judge may suggest you would get less compensation than you expected. You may wish to reach a mutual settlement agreement and limit your loss rather than lose the case.
A Judicial Assessment can only take place if you have been invited to a preliminary hearing or if both parties agree to the assessment. You can request a Judicial Assessment at your preliminary hearing or when you submit your case management agenda.
Last-minute settlements
You can agree to a settlement at any time up until the tribunal hearing; settlements are often reached in the tribunal waiting rooms. You should think ahead of what you want from a settlement and what you would be willing to accept. If the other party does try to make a last-minute settlement, or you decide that you would like to offer one, we can speak to the other side on your behalf.
The tribunal hearing
There is a set order for who speaks when, depending on what the claim is for. Witnesses will approve their statements, and then be asked questions by the other side. After hearing from the witnesses, each side can make closing submissions to sum up their case and the evidence supporting it.
Sometimes the tribunal panel will leave the room and make its decision immediately. Sometimes it may take longer, and the tribunal will write to you with their decision.
After making its decision, the tribunal might allow you time to try and reach an agreement. As well as financial matters, you could agree about arrangements such as references and confidentiality. This allows you some control over what is decided. However, if you can’t reach an agreement the tribunal will award compensation and give a deadline for when it should be paid.
Appeals
If you are unhappy with the outcome of your case, you may request a review or an appeal. However, you need a good reason; you can’t appeal just because the decision was against you. You may ask the tribunal to review its decision if you were unable to attend the tribunal for a good reason, or there is new evidence.
If you think the tribunal applied the law incorrectly you can appeal to the Employment Appeal Tribunal. This will mean your case takes longer and is likely to involve more complicated points of law. It will also delay the payment of damages.
We can advise you if we think you have grounds for appeal. You have 42 days from the date you receive the written reasons for the judgement.
What should I expect at the tribunal hearing?
Your case will be heard at your local tribunal. As we are based in Birmingham, most of our cases are heard in the Midlands (West) Employment Tribunal. You can find your local tribunal here.
You should arrive at least half an hour before your hearing. Claimants and respondents wait in separate areas, so there won’t be an awkward wait. Tribunals are public, so there may be other people in the room. This means that you can bring friends or family for support. They will sit behind you and must not get involved in the hearing.
While tribunals are less formal than court, you should still dress smartly and refer to panel members as Sir or Madam. Like in court, evidence is given on oath.
Employment disputes can be upsetting, so you should prepare yourself for dealing with difficult emotions and staying calm. Keep calm, make sure you understand any questions you are asked, and be honest.
How long will the process take?
The time it takes to get to tribunal will depend upon how busy your nearest tribunal is, and how many days your case is likely to take. Complex cases that will need to be heard over several days may take longer to get a date. Simple cases will usually be heard between four and six months from the date the ET1 form is received.
Get in touch
Do you have a legal matter you'd like to discuss with us? Get in touch using the details below or use the form here and a member of our team will be in touch to discuss your enquiry.
Address: Spencer Shaw Solicitors Limited
Vancouver House, 111 Hagley Road, Edgbaston, Birmingham B16 8LB
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Saturday, Sunday & Bank Holidays - Closed
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