18 Jun 2015
If you feel that you’ve been treated unfairly by your employer, you may want to take legal action. Before you find a solicitor with a successful track record in managing these cases, here are some essential tips.
An Employment Tribunal is likely to hear disputes concerning unfair dismissal, redundancy payments and employment discrimination. This can include disability discrimination, racial discrimination, sex discrimination, sexual harassment, religious belief discrimination, and equal pay. Here are the 10 things you need to know before you start a claim.
1) Before a claim to an Employment Tribunal can be commenced, you must send basic details to ACAS. There is then an early conciliation period during which ACAS will approach your employer to see if they wish to settle your case. You will then obtain a certificate of compliance, allowing you to submit an ET1 form. This has a ‘stop-the-clock’ effect on the time limit for submitting the ET1
2) To start a claim, a claimant must present their claim form (ET1) within three months and less one day from the date of dismissal or alleged act of discrimination. You will not be able to commence a claim until ACAS issues a certificate confirming the Early Conciliation.
3) You will need to pay a fee at issue of the claim and a hearing fee, to be paid at the date specified in the notice listing the hearing. There is no refund if the claim is settled prior to the hearing. Fee payments may be made online or through a central processing centre. Any claim not accompanied by the correct fee will be rejected. Claimants pay fees depending on the type of claim. Type B claims for unfair dismissal (ordinary and automatic), discrimination and whistleblowing attract issue fees of £250; all other claims (Type A) attract an issue fee of £160. Hearing fees are £230 for Type A and £950 for Type B. There is a fee remission structure in place, which means some claimants will not need to pay for all of the applicable fees.
4) Your employer will set out its response using the ET3 response form. When reviewing this, you may want to see certain documents to get more information or gain a clearer understanding of what your employer has said. The Employment Tribunal has rules about how you can ask to see these documents; this is called disclosure. Both you and your employer will normally be required to disclose all relevant documents. Once you have exchanged documents you may ask your employer to supply any additional documents you think are relevant.
5) Your employer can use the procedure of disclosure to ask you for information and documents. It’s important that any request is carried out, particularly if the Employment Tribunal makes an order. If you’re not happy with the request, perhaps because you don’t think the documents are relevant or because they contain other personal information, you must explain the circumstances to the Employment Tribunal, who will then decide what to do. If they think the information is relevant, you will have to supply it, otherwise your claim may be struck out.
6) Some Employment Tribunals will issue standard directions to both employee and employer to give each other certain information and documents within a time limit. You should always take these orders seriously and do what’s asked within the time limit. If there’s a reason why you can’t do this, write to the Employment Tribunal as soon as you can to explain why. If you don’t carry out an order without a very good reason, you may have to pay costs, or even have your case struck out. This means that the Employment Tribunal will not let you carry on with your case.
7) Employment Tribunals are required “wherever practicable and appropriate” to encourage parties to use ACAS, judicial, mediation or other means of achieving settlement. Parties will need to attend any hearings ready to discuss their approach to settlement. The new regulations expressly empower the President to issue practice directions, allowing a judge to act as mediator in a case they have been selected to decide upon. The parties would clearly have a strong incentive to appear reasonable in any such mediation. You are able to withdraw or settle your case at any point during the process.
8) While Employment Tribunal hearings are less formal than other court proceedings, there are still rules of procedure that are followed. Both parties’ witnesses, including your own evidence, is normally provided by written statements. It is important that your statement is well prepared, clearly setting out your case. Each witness can be cross-examined on their evidence. Cross-examination means challenging the evidence of the witnesses, normally where there is disputed evidence. Cross-examination is your opportunity to challenge the evidence of your employer but is more difficult than it appears in a court room drama. Lay claimants often struggle with cross-examination. Once all the evidence is heard, each party has the opportunity to make submissions as to why their case should be preferred.
9) Should you be fortunate enough to win your case, you will have the opportunity to advance your case for compensation. Earlier in proceedings, you will be asked to prepare a schedule of loss. As you are under a duty to mitigate your loss by seeking alternative employment, you need to demonstrate what efforts you have made to secure new employment. A diary recording what efforts you made always helps.
10) Either party can appeal to the Employment Appeals Tribunal (EAT) within 42 days if they believe the Employment Tribunal has made an error in law. It’s worth noting that appeals are only accepted in limited circumstances and fees are payable.
If you feel that you’ve been treated unfairly by your employers, we can help you reach a resolution that’s reasonable and just, get in touch with one of our specialist team for help and advice.