The aim of this short note is to give you some idea about what to expect from an Employment Tribunal case. The Employment Tribunal Service (0300 123 1024) also publishes useful booklets called “How to apply to an Employment Tribunal” and “Hearings at Employment Tribunals”.
You can also look on their website.
Contemporaneous notes of meetings and conversations
If you are still employed, you should take notes of any conversations or meetings you have with your employer. It is important that notes are taken at the time, or soon afterwards (and that the time and date of the note is recorded on it), because they can then be used, in the Tribunal, as evidence of what happened. You should keep copies of the original notes and not change them in any way subsequently. If your case does go to a Tribunal, contemporaneous notes are more valuable evidence than what may be a hazy recollection of what happened some months or years previously.
Once proceedings have started, a copy of these notes, if we intend to use them as a record of what happened, will have to be sent to your employer and will be put in the bundle of documents for the Tribunal. It is therefore important that you only record details of what actually happened between you and your employer, and not discussions with a solicitor or personal comments which you would not want your employer to see. Contemporaneous notes are particularly important in discrimination cases where there is often no unequivocal evidence that there has been discrimination and it will have to be proved by drawing inferences from the facts.
Documents
It is particularly important to keep all relevant documents, including your contract, appraisal letters between you and your employer, notes of meetings and any notes of conversations which you made. Please bring these documents to the first meeting with us, or if possible, post, e-mail or fax them to us a couple of days before the meeting.
In all cases, once we have lodged the claim, we will ask your employer to send us copies of any documents that may be relevant to the claim. We will send these documents to you for your comments.
We will also have to provide copies of your relevant documents to your employer. This does not include discussions with us nor your instructions to us. It would include any correspondence or emails between you and your employer, your contract, notes of meetings, etc. It is important for you to be aware that any documents exchanged between the parties must not be passed on to a third party as they have only been disclosed for the purpose of the proceedings. The same rules apply to any document that you have and which we are obliged to send to your employer where relevant to your case.
This does not include any documents which cover advice by us to you nor, for example draft statements which we take from you. These are for our use only and will not be seen by either your employer or the Tribunal.
ACAS Early Conciliation
If early conciliation applies to your case (and it applies to most claims with very few exceptions) you must notify ACAS prior to any claim being made in the Employment Tribunals. We normally recommend telephoning ACAS on 0300 123 1100 or you can notify ACAS using their online notification form.
Once you have notified ACAS of your complaint they will contact your employer and attempt to settle your potential claim. We will always try to resolve your claim wherever possible with the help of ACAS. Once either you or your employer notify ACAS that you do not wish to conciliate or the Conciliation period expires (which could be as long as one calendar month plus 14 days) you will receive your Conciliation Certificate. Once this has been received you can submit your claim. As set out below the effect of the Early Conciliation period is to “stop the clock” on the time limit application to your claim.
Time limits
The Tribunal rule is that most cases must be begun within three months of the act of which you complain, such as dismissal or an act of discrimination, except for equal pay where the time limit is six months from the date of the termination of employment. This means that if the act of discrimination happens on 2 July, the claim must be lodged no later than 1 October. There are different rules if the discrimination is continuing and we will advise you about these. In certain circumstances, the Tribunal has power to extend the time limit. Additionally the ACAS Early Conciliation Process will automatically stop the clock for a period of month, so you will always have at least a month to submit your claim after the ACAS Conciliation Process has ceased. We will advise you about time limits specific to your particular claim.
Lodging the claim at the Tribunal – Procedure
You begin a claim by sending an Originating Application Form (also called Form ET1 or ET1) at the Employment Tribunal office for the area where you work(ed). You can order an ET1 from the Tribunal Service (0300 123 1024). It is advisable to check with the Tribunal that they have received the claim, so that there is no risk of being out of time. If we are acting for you, we will do this for you. You can also file a claim online.
The employer’s response
The Tribunal will send your claim to your employer who will have 28 days to send their response (the ET3) to the Tribunal. The Tribunal will send to us a copy of the response and we will send it to you for your comments. We can ask for further details of what the employer says in the ET3 if necessary and likewise the employer can ask for further details of your claim.
Conciliation through ACAS
Every Employment Tribunal case is allocated to an independent Conciliation Officer or ‘CO’. The CO’s duty is to act as an independent mediator between the sides, and to help achieve a settlement if possible. The CO will often ask the two sides if they would consider a settlement and then ask what sort of settlement figure each side has in mind. Anything that is said to a CO is said in strict confidence, and cannot be repeated in a court or tribunal.
The next steps
The Tribunal will usually send out a letter setting out the steps to be taken prior to the hearing. These will include:
- a timetable for clarifying the issues to be decided;
- further details to be provided if either party has not fully set out the claim or defence;
- a timetable for the preparation of a list of relevant documents;
- exchange of relevant documents in a paginated bundle in chronological order. Four copies of a paginated bundle must be given to the Tribunal on the first day of the hearing;
- the parties exchanging written statements of all witnesses who are to give evidence. This is usually done 7-14 days before the hearing;
- the length and date of the hearing.
In some cases the Tribunal will arrange a hearing to clarify the issues and discuss the above. If the parties agree, this can be done by telephone which saves costs.
Compensation
The Tribunal may also ask for a schedule of loss setting out the losses suffered, including loss of earnings, bonus, commission, pension and other benefits. This is calculated by working out the earnings you would have received if you had not suffered discrimination (or unfair dismissal) and deducting these from any earnings and benefits you have received and/or are receiving from any subsequent job.
The Tribunal will work out the loss up until the date of the Tribunal hearing and then assess future loss. Future loss is very difficult to predict, particularly if you do not know how long it will take you to get another job. If the loss is likely to be long-term, it may be worth considering appointing an employment expert.
Settlement
A high proportion of Tribunal cases settle without being heard, although this of course cannot be guaranteed. A solicitor or representative cannot settle the case for you without your consent, so there is no question of a settlement taken place behind your back. You should, in most cases, be prepared to consider a settlement. As most cases raise important issues of principle about which people feel very strongly, the Tribunal will usually express its decision by making an award of money. A settlement means that you avoid the risk of defeat at the hearing. Any offer of a money settlement therefore, has to be considered seriously. You should expect your opponent to insist that any settlement is expressed to be without any admission of wrong doing: this is standard wording. Many employers require the details of a settlement to be confidential this can be problematical if the case is about an important issue and the outcome would benefit other claimants.
Where any claim is settled, it means that you will not be able to make any further claim against the employer in relation to your employment. The sum which is negotiated on your behalf will be in settlement of all your losses, for example, loss of earnings, notice monies, loss of benefits, and injury to feelings. Once a figure has been agreed (even if only orally), it is extremely difficult to go back to the employer and ask for more.
In addition, where a discrimination case has been settled and the settlement includes an amount for injury to feelings, it may not be possible to bring a personal injury claim relating to the discrimination. This is because the Court of Appeal has decided that the Tribunal can hear claims for personal injury arising out of discrimination and it is not possible to make a further claim for personal injury in the County Court or High Court. This area of law is changing all the time, and we would discuss it with you at the relevant time.
Duty to look for alternative work
Compensation for loss of earnings may be reduced if you do not try and find another job. You should make every effort to find a suitable job and keep details of job advertisements, job applications and any rejection or interview letters, contact with recruitment agencies, etc. You should register with the Employment Service for Job Seekers’ Allowance (JSA) or other benefits. They will expect you to keep a log of efforts you have made to find work. It is a good idea to keep a copy of this for the Tribunal and to fill in as much detail as possible. If you do receive benefits they may well be offset against any compensation you are due. You can claim your expenses in looking for work as part of your compensation.
THE HEARING
The Tribunal is usually made up of three members, although in simple cases it may be heard by a Judge alone. The Chair is a lawyer, and the other two members come from an employer panel and a union panel. In race discrimination cases, one of them is from a specialist race discrimination panel. They can reach a decision by a majority. Tribunal hearings are open to the public. Some simple cases are heard by a Chairman alone.
Hearings last from 10am until about 4.15pm, with a break for lunch. If you have not been involved in a Tribunal case before, it is a very good idea to go along and watch a case before your own case is heard. That will give you some familiarity with how things are done and with the Tribunal procedure.
There has recently been a log jam of old cases waiting to be heard by the Tribunal, with the result that some cases take over a year to be heard. In general, the longer and more complex the case, the longer it takes to come on for hearing. You will have at least two weeks warning of a hearing, and generally longer than that. Many cases have two or more hearings, the first being a “Directions Hearing”, which is a discussion between all the parties and is aimed at identifying the issues and setting a timetable.
We would normally instruct a barrister to represent you. This will generally be a specialist lawyer. You and your witnesses can claim expenses for attending the Tribunal and you should ask the clerk at the Tribunal for a form to reclaim these expenses.
Witnesses
If you have witnesses who will be able to give evidence in support of your case we will need to interview them and prepare a written statement for them just as we have to prepare a written statement for you. You should ensure that they are available for the hearing date. If there is any doubt that a witness will turn up or if they are having trouble getting time off work the tribunal can serve a ‘witness summons’ – which we have to apply for in advance. Witnesses can claim expenses for travel and a small amount of loss of earnings from the Tribunal.
Publicity
Hearings in the Tribunal are open to the public, including the press. The Tribunal has power to sit in private very rarely. If a case involves allegations of sexual misconduct, or might include hearing intimate medical information, the Tribunal has power to order the press not to name anyone involved in the case until the end of the hearing.
Compensation: redundancy and unfair dismissal
The Tribunal may make an award in two parts. The first, known as ‘the basic award’ is set according to a fixed formula, taking into account the employee’s age, length of service, and level of salary (up to a ceiling of £544 per week from 6 April 2021. Exactly the same formula is used to calculate a statutory redundancy payment. In some circumstances the award can be reduced to take into account your conduct.
The Tribunal may, in addition, make a ‘compensatory award’. This is a calculation of the net losses caused by the dismissal. The usual approach is to work out what the net pay and benefits would have been between dismissal and the date of the hearing, and then to subtract any earnings or benefits received in the same period. The Tribunal would then make an estimate of how long the losses may continue after the hearing. There is a ceiling set for the total compensatory award of the lesser of £ £89,493 or 12 months gross pay (as at 6 April 2021). However, there is no cap if the dismissal is for one of a number of limited “protected” reasons, such as whistleblowing, or being dismissed because you raised health and safety concerns.
It has no power to award anything for hurt or injury to feelings caused by the dismissal.
If the Tribunal considers that the employee’s own misconduct contributed towards the dismissal, it must decide on a percentage figure for the level of contribution, and then reduce the compensatory award by that percentage. The Tribunal’s powers in this extend as far as reducing an award down to nil.
The Tribunal may also exercise its discretion to uplift or reduce any compensatory award it makes if you or your employer failed to fully comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures. The Tribunal may increase or reduce the compensatory award by up to 25% to reflect either party’s failure to comply with the Code. The Tribunal may also order the Respondent to pay your issue and hearing fee.
Compensation: discrimination cases
In any case of discrimination, protected dismissals such as whistleblowing cases and other detriment cases, the Tribunal may make two awards. One is an award for the injury to feelings caused by the discrimination/protected dismissal and/or detriment. This will depend on whether the Tribunal thinks that there was a great element of hurt and humiliation involved in the case. Although most awards for injury to feeling are in the region of about £2,000.00 to £6,000.00, extreme cases of abuse or assault or harassment can lead to much larger awards. The “Vento” range for injury to feelings is currently £900 – £45,600, with exceptional cases exceeding this.
If, in addition, the discrimination has caused financial loss, the Tribunal may compensate for that loss, without any financial ceiling. The Tribunal must however be satisfied that the discrimination has caused loss. If there is a claim for unfair dismissal and discrimination only one award is made for loss of earnings.
Costs
In the Employment Tribunal, unlike the ordinary courts, the normal rule is that the loser of a case does not pay the legal costs of the winner. This means that if you pay for representation, you should assume that you will not recover any of your legal costs from your opponent even if you win. Likewise, if you lose you will not normally be required to pay the employer’s costs.
The Tribunal may however order one side to pay some of the opponent’s costs if there has been vexatious, abusive, disruptive or otherwise unreasonable conduct, or if the Tribunal considers that the claim or conduct of proceedings was misconceived. Up to £20,000 can be awarded without detailed assessment of the costs incurred by either a County Court Judge or Employment Tribunal Judge. This happens relatively rarely, although costs orders are increasing and we will warn you if we think there is a risk of costs being awarded in your case or if we will be applying for costs on your behalf.
Appeals
At the end of a case, the Tribunal gives its decision in writing with reasons. If, but only if, the Tribunal has made a legal mistake, you may appeal to the Employment Appeal Tribunal. This must be done within 42 days of the Employment Tribunal’s decision being set out in writing. Public funding can be available for appeals subject to the merits of the claim and your financial position. At present, there is a long backlog of appeals waiting to be heard, and generally you have to wait for at least a year for an appeal hearing.
Review
If the Tribunal has made a small error or has not taken into account a very important piece of evidence, then your case can be “reviewed” by it and it may change its decision. This is sometimes more appropriate than an appeal; it is faster and cheaper in any event.