11 Aug 2020
Making a claim to an employment tribunal can seem daunting. However, it can help to know what to expect. This resource will help you learn what employment tribunals do, how to make a claim, what might happen during the hearing and what decisions the tribunal can make.
What is an Employment Tribunal?
Employment tribunals hear claims brought against employers by employees. A tribunal comprises up to three people. The employment judge will be legally qualified, and there may be two lay members (though this normally only applies in discrimination cases).
Employment tribunals deal with claims for unfair and wrongful dismissals, discrimination, equal pay, and wage deductions. First steps
If you believe you have been unfairly treated in the workplace, the first step is to submit an Acas Early Conciliation Notification Form to Acas (the Advisory, Conciliation and Arbitration Service). This is compulsory. All claims have to be commenced within a time limit of 3 months less one day from the incident to submit the form, otherwise your claim will be out of time. The form is free of charge and can be found here: https://www.acas.org.uk/early-conciliation. The aim of early conciliation is to achieve a settlement of the claim without the need for tribunal proceedings. There are strict time limits to present claims and specific legal advice should always be sought.
Although you are required to submit this form, there is no obligation on either party to participate in the process.
If ACAS early conciliation is not successful, a claim form has to be completed and filed at the tribunal setting out the details of your claim. The claim form will be served on your employer and your employer will be required to set out its response to your claim. The tribunal will then issue directions or arrange a hearing to issue directions as to when documents should be exchanged, witness statements served and the case listed for hearing.
Being represented by an experienced employment solicitor will enable more effective presentation of your case – although not everybody can afford this. Always discuss with us whether you have legal expenses insurance. However, either party can choose not to be legally represented.
Employment Tribunal claims can take a long time. The average time between starting a claim and receiving a decision is 27 weeks (though COVID means it may take longer for claims to progress). Preparing a written account of your evidence at an early stage will help you keep a clear memory of the facts and assist you to best present your evidence.
Keep a record:
Include anything you think is relevant and allow your adviser/representative to give you advice on the evidence that you need to support your case. If you have comments for particular documents or correspondents, write these down separately as the evidence documents may need to be photocopied for the tribunal.
What will happen in the Tribunal?
While Employment Tribunal hearings are less formal than other court proceedings, there are still rules of procedure that are followed. Introductions will be made at the beginning of the hearing, then the Judge will decide which side will give their evidence first (the Claimant or the Respondent). In an unfair dismissal claim, the employer usually present its case first as the burden is on them to prove that the dismissal was fair. In a discrimination claim, the employee usually presents their evidence first as they have to establish a prima facie case of discrimination before the burden of proof shifts to the Respondent to explain the reasons for the difference in treatment.
All parties’ witnesses including yourself will have to submit a written witness statement. It is important that your statement is well prepared, clearly setting out your case. Witnesses 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 courtroom drama. Lay claimants often struggle with cross-examination. Taking your time, thinking about the question being asked and answering clearly will help get your evidence and point across to the Judge. Once all the evidence is heard, each party has the opportunity to make submissions as to why their case should succeed.
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.
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. Appeals are only accepted in limited circumstances.
Get in touch
Entering into an Employment Tribunal can be daunting; we can help you reach a resolution that is reasonable and fair. If you have any concerns or questions about Employment Tribunals, contact our expert team today for impartial advice and guidance.