Employment tribunals - a detailed guide

When an employee believes they have suffered unfair treatment by their employer, the first port of call is to attempt to resolve such matters internally, either informally or via the employer's grievance procedure.

However, unfortunately, this is not always possible. In situations where such methods of resolution cannot be pursued, an employee has the option of bringing a claim against their employer in an employment tribunal. Typically, although not always, claims relate to the following matters:

• Unfair dismissal;
• Wrongful dismissal;
• Constructive unfair dismissal;
• Discrimination;
• Equal pay; and/or
• Unlawful deductions from wages.

Employees will not incur any fees to lodge a claim in the employment tribunal as it is now free to issue a claim at an employment tribunal. Of course, if an employee seeks legal advice and assistance during the process and/or legal representation at the tribunal hearings, legal costs are associated with these services.

Usually, the timeframe is three months minus one day from the date of dismissal or from the date of the act that the employee is complaining of. The three months minus one-day limitation date is applicable in cases such as unfair dismissal and discrimination claims. However, when the employee claims a statutory redundancy payment or equal pay for equal work, they will have six months to bring the claim, rather than the usual three months minus one day. Please check any time limitation issues with an employment law solicitor sooner rather than later.

Whilst the timeframes mentioned above are the general rule of thumb, in certain rare circumstances, an employee can submit a claim outside of these time periods. Such allowances will only be made in exceptional circumstances, and so employees should make every effort to submit their claim within the specified timeframes.

If an employee is out of time, for whatever reason, it is advisable to seek legal advice on the test the tribunal will consider for allowing "late" submissions in respect of the specific claim. The test for allowing an out of time unfair dismissal claim is an exceptionally high hurdle to surpass.

An employee needs to know when their limitation period will start running to work out their limitation date. Again, this is claim dependent, for example:

• Unfair dismissal and constructive unfair dismissal – three months' less one day from the date of the termination of their employment;
• Wrongful dismissal - three months' less one day from the date of the termination of their employment;
• Discrimination – three months less one day from the last date of discrimination;
• Equal pay for equal work – six months from the termination date;
• Unlawful deduction of wages – three months less one day from the date of the last deduction.

This process is entirely free; however, should either party want legal assistance, this will be charged accordingly by the party's chosen employment lawyers.

Early conciliation is a mechanism designed to help employees voice their concerns outside of the internal employment mechanisms and try to resolve these concerns while still avoiding the need to go through the lengthy and stressful ordeal of submitting a claim employment tribunal.

It is important to note that all discussions through the ACAS early conciliation process are considered to be off the record "without prejudice" conversations. Therefore, they cannot be disclosed or relied upon during the tribunal proceedings if a settlement is not reached.

Is ACAS early conciliation a requirement?

Whilst it is mandatory for an employee to inform ACAS of their intention to bring an employment tribunal claim, the employee is not obliged to settle their claims via the early conciliation process. However, it is vitally important that an employee follows this first step before submitting a tribunal claim.

How does ACAS early conciliation work?

When an employee informs ACAS that they wish to claim in an employment tribunal, they are known as the "claimant". The employer is known as the "respondent". During the early conciliation process, the parties will often be referred to under these titles.

Once the employee has contacted ACAS, the ACAS officer will take preliminary details of the employee's potential claim and then appoint an ACAS conciliator to the matter.

Once the conciliator has the necessary details, they will ask whether the employee wishes for them to contact the employer for opening settlement discussions. If permission is granted, the conciliator will reach out to the employer and explain the situation to facilitate settlement discussions.

An employer may choose not to engage in the process. If this is the case, the early conciliation period will be brought to an end.

ACAS early conciliation conciliator's role

If both parties enter into the early conciliation process, the conciliator acts as a "go-between" to facilitate discussions between the employee and employer. The conciliator will liaise with both parties to decipher their position and propose any settlement offers made by either side.

The conciliator is completely impartial; they do not represent either party and cannot provide legal advice to either party.

Fundamentally, the conciliator is there to ease discussions between the parties, as relationships are likely to have broken down by this stage. The conciliator can help explain the process, talk through the issues, and discuss possible resolution methods that avoid recourse to the Employment Tribunal. The conciliator will not be able to force an agreement on either party or advise either party on their case's strength. The conciliator is also not allowed to assist either side in their preparations for Employment Tribunal.

Representation During ACAS early conciliation

Both parties are entitled to appoint representatives to act on their behalf during the ACAS early conciliation process. If a representative is appointed, the conciliator will speak directly with them rather than the employee/employer.

Therefore, it is essential for the representative to clearly understand the party's position prior to commencing early conciliation and to remain in constant communication with the party that they represent to obtain their instructions as the process progresses.

The representative should regularly update the employee/employer as to how discussions are faring. A representative can be any individual of the party's choosing, e.g. a friend, relative, work colleague, Trade union official or a Solicitor. If at any point during ACAS early conciliation a party wishes to add or remove a representative this can be arranged.

Possible outcomes of ACAS early conciliation

Following a recent change in this area, the ACAS early conciliation process usually continues for a period of 6 weeks (previously one month).

Of course, the early conciliation process will not continue unnecessarily. There is no point in the parties merely rehearsing their potential claim or potential defence to the claim if it is not believed that a settlement is possible at this time. Therefore, if during the process, it becomes clear that the two parties are too far apart in their expectations to make settlement a possibility, ACAS early conciliation can end sooner than this date.

If an agreement is reached between the parties during ACAS early conciliation, this is recorded on a form known as a "COT3". The COT3 details the terms of the settlement between the parties. It is a legally binding document once signed by both parties, and so it is vital both the employer and employee carefully read this document and are happy with its contents prior to signing it.

Once the COT3 has been finalised, the matter will be closed. The employee will no longer be able to bring a claim in relation to this matter in an Employment Tribunal.

Alternatively, if an agreement cannot be reached between the parties during ACAS early conciliation, ACAS will release a document to both parties, which is known as an early conciliation certificate, to confirm this conciliation has taken place, but no agreement has been reached. This document is needed to enable the employee to issue a claim in the employment tribunal.

Employees should insert as much relevant detail as possible into their ET1 and set out their claim as clearly as they can to ensure that the employment tribunal can identify the issues in the case, which it will be required to determine, and to enable the employer (Respondent) to fully respond to the claims which are submitted against it.

Presenting the ET1 to the employment tribunal

The employee must present an ET1 to the employment tribunal via the online claim portal. The ET1 must be received before midnight on the date it is due to be presented.

To reduce the risk of the ET1 being submitted out of time when being submitted electronically, the employee should allow for unforeseen delays and complications such as computer issues by submitting the claim in advance of the deadline as opposed to waiting for the limitation date and submitting the claim on the day that the deadline expires.

Acceptance or rejection of the ET1

Once an ET1 has been received by the employment tribunal, it will initially be considered by the administrative staff of the Tribunal Office who will check whether: -

• The standard ET1 has been used;
• The form contains the required information;
• It is outside of the employment tribunal's jurisdiction;
• It is in a form which can sensibly be responded to; and
• It is otherwise an abuse of process.

If the ET1 is accepted in full, the tribunal will serve a copy of the ET1 on the employer, together with an ET3 response form for completion (this is set out in more detail below).

If the claim (or part of the claim) is rejected for one of the five grounds set out above, the tribunal will send the claimant a notice of rejection explaining the grounds for rejection and how to apply for a reconsideration, if applicable. If, however, the defect is capable of being rectified and the claim is still within the limitation period, the employee can rectify the defect/error, and the ET1 can be resubmitted.

Completing the ET3

An employer must present its response on the standard ET3 form, which will be issued to the employer when the tribunal serves the claim. Alternatively, the standard ET3 form can be accessed and downloaded from the Government website.

The employer will need to explain the details of why it is defending the claim. This can be included in the ET3 form itself. However, many employers elect to have a separate "grounds of resistance" document to supplement the ET3 from.

The employer needs to ensure that the grounds of resistance document responds to the employee's claim(s) and also make clear the employer’s version of events. Equally, the response should address why the claim, or part of it, does not have reasonable prospects of success, or if it is outside of the tribunal's jurisdiction (or both if applicable).

Any response should be thorough and deal with each argument raised by the employee. It should include all relevant information and detail, including important dates and references to key evidence.

Presenting the ET3 to the employment tribunal

If an employer wishes to defend a claim, the ET3 must be submitted to the tribunal within 28 days of the ET1 being served on the employer. The ET3 must be submitted on the standard ET3 form and must include the required information. The necessary information consists of the employer's full name and address and an indication of whether they wish to defend any part of the claim.

Applying for an extension of time to present a response

An employer can apply for an extension of time to present its response either before or after the original 28-day deadline has expired. Any application for an extension must:

• Be in writing;
• Be copied to the employee;
• Set out the reason why the extension is sought; and
• State whether the employer requests a hearing to deal with the application for the extension.

If the 28-day time limit for the presentation of the response has passed by the time the application is made, the application must also be accompanied by a draft of the ET3 response the employer wishes to present or an explanation as to why it is not possible to attach a completed draft response.

Within seven days of receipt of their copy of the application, the employee can submit written reasons to the tribunal explaining why they oppose the application for the time extension.

The employment judge may determine an application without a hearing. If the judge decides to refuse an extension, any prior rejection of the response will stand. Alternatively, if the decision is to allow an extension, any prior judgment in respect of the rejection of the ET3 will be set aside.

Acceptance or rejection of the ET3

If an employer fails to use the standard ET3 form or fails to provide the required information, its ET3 will be returned by the tribunal with a notice of rejection explaining why it has been rejected. The notice will explain what steps the employer may take, including the need (if applicable) to apply for an extension of time, and how to apply for a reconsideration.

Both the employee and employer are entitled to put forward settlement offers at any point during the process. If a settlement is reached, the parties will need to contact the ACAS conciliator who was allocated to them during the ACAS early conciliation process in order to formalise any agreement reached and ensure that the agreement is set out in a COT3 document making it legally binding on both parties.

Another option available to the parties in some instances is to engage in "judicial mediation". Judicial mediation is a form of "alternative dispute resolution".

Judicial mediation allows the parties involved in a claim to be bought together for a mediation meeting at a form of preliminary hearing.

The judicial mediation will be held by an employment tribunal judge, who will remain neutral and unbiased.

The judge will assist the parties in attempting to resolve their dispute without progressing to a final hearing by providing a view on the prospects of each parties' case.

Judicial mediation is private and confidential, and should it not be successful, any discussions which took place during the judicial mediation process cannot be discussed during the final hearing.

The final hearing will be conducted by a different judge than the one involved in judicial mediation.

It is important to note that not all cases are suitable for judicial mediation. Suitable cases will be identified by an employment tribunal judge at an initial preliminary hearing. Should both parties wish to progress to judicial mediation, a further preliminary hearing will be scheduled to accommodate the judicial mediation.

It is important to note that judicial mediation is not obligatory (even if it is suitable), and parties are always able to negotiate with one another via ACAS or via solicitors as an alternative to engaging in judicial mediation. Parties are able to negotiate with one another up to and including the date of the hearing.

A preliminary hearing will generally be conducted by an employment judge sitting alone.

The employment judge will typically deal with some, or all, of the following matters at a preliminary hearing:

• Confirm the disputed issues;
• Confirm whether the parties wish to amend their claim or response;
• Whether there are any jurisdictional issues to be determined;
• Whether there are any orders to be made;
• The structure of the claim;
• Whether judicial assessment or judicial mediation is suitable;
• Whether expert advice is required for example a medical expert;
• Whether further case management is required;
• Disclosure and inspection of documents;
• Provision of a schedule of loss and counter-schedule;
• Exchange of witness statements;
• Preparation for the final hearing;
• Deciding which party will be responsible for the preparation of the hearing bundle; and
• Listing the case for final hearing.

Preparing for a preliminary hearing

Typically, employment tribunals will send an agenda out to the parties in advance of the preliminary hearing, which is often used as a checklist to prepare for the hearing and also by the judge during the hearing to ensure that all relevant matters are covered.

During a preliminary hearing the judge will set deadlines for certain documents or tasks to be completed in order to enable the claim to progress to the final hearing, these deadlines are known as “directions”.

A few of the usual directions which are required in order to progress to a final hearing are set out below.

Directions

Producing a hearing bundle

A bundle contains the documents and evidence relevant to each party's case, which will be looked at by the employment judge during the hearing.

Prior to producing the bundle, the parties are required to disclose to each other all relevant documents. Timelines for disclosure are directed by the tribunal judge during the preliminary hearing.

The duty of disclosure extends to disclosing everything relevant to the case in either parties' possession; this essentially means that a party cannot withhold a document that may be detrimental to their case if it is relevant to the case and may help to progress it. Any relevant documents must be disclosed.

The exception to this rule is that all 'privileged' documents do not need to be disclosed, for example, documents between the parties' and their legal adviser's giving advice and/or if the documents are marked "without prejudice".

Once disclosure has taken place, the bundle can be produced.

It is usual for the employer to produce the bundle, usually because as the employer, they will have access to the majority of documents.

An agreed bundle should be produced, i.e. the employee (the claimant) and employer (respondent) decide on what should be included in the final bundle.

If there are disagreements between the parties about what should and should not be included in the bundle, two separate bundles may be produced. However, employment tribunals tend to prefer one agreed bundle.

Numerous copies of the bundle need to be produced: one for each member of the tribunal panel, one for the employer, one for the employee, and one for the witness stand.

Witnesses

Witness evidence can be given in tribunal in support of either parties' case.

The legal representatives for each party will discuss with their client the following:

• Who their witnesses will be;
• Why their evidence is relevant; and
• Whether the witness(es) has any dates to avoid where they are unavailable to give evidence in the tribunal.

The employee and all the witnesses for both the employer and employee will need to produce witness statements.

Typically, the date by which parties need to exchange witness statements will be determined by a judge at a preliminary hearing. Exchange will usually be agreed to take place mutually.

Once statements have been exchanged, the tribunal usually does not allow the parties to amend or change any evidence unless exceptional circumstances apply.

Both the employer and employee will need to explain to an employment tribunal judge, the relevance of evidence that a witness will be giving.

All witnesses will need to attend the final hearing of the matter to enable them to be cross-examined on the evidence they have given in their witness statement.  

Both parties, or their representatives, must attend the final hearing. During this hearing, both parties will have the opportunity to put forward their version of events to the employment tribunal judge, put forward arguments as to why their claim/defence should succeed and all their witnesses will give evidence and be cross-examined by the other party.

The hearing will be conducted by either one judge sitting alone, or a panel consisting of a judge and two lay members (one usually from a trade union background, and the other from a HR background). The judges required will depend on the matters being pursued in the employment tribunal, for example an unfair dismissal claim will usually be heard by a judge sitting alone, whereas a discrimination claim may be heard by a panel.

The length of a final hearing will vary depending on a variety of matters such as the complexity of the case and the number of witnesses to be heard. A straightforward unfair dismissal claim, for example, may only be listed for one or two days, whereas in contrast, a complex whistleblowing claim could be listed for 5 or more days.

Once the hearing is approaching conclusion and both parties have given their evidence and put forward their arguments, the judge will make a decision on the outcome of the claims, and if the employee succeeds in their claims. This decision is not always made and delivered to the parties at the hearing, and the decision can be “reserved”. This means the judge will deliberate and send out their decision directly to the parties and in writing.

If an employee is successful, the tribunal will also need to consider the award to be issued to them. This may be addressed during the hearing, or if there is not enough time left, then the tribunal may issue a separate remedy hearing to look at the award alone.

Costs

In contrast to a Civil Court where costs follow the event, i.e., where the party that wins the case will be able to seek its legal costs from the losing party, an employment tribunal does not operate in this way.

There are however circumstances in which costs can be ordered, but this is very rare. For example, if a party has acted 'vexatiously, abusively, disruptively, or otherwise unreasonably' in bringing a claim, costs may be awarded however it is essential that a detailed costs warning letter was sent to the party at the earliest opportunity.

Both the employee and employer should continuously consider the cost of bringing a claim in an employment tribunal in contrast to negotiating a settlement agreement.  

Conclusion

In conclusion, both employees and employers need to ensure that their claims and responses are articulate and comprehensive when they are submitted to the employment tribunal. They should ensure that sufficient information is included to assist the employment tribunal in progressing matters as swiftly and efficiently as possible.

Should the claim proceed to a final hearing, it is important to remember that both the employer and employee have a duty to disclose all information and documentation, whether this assists either case. The obligation to disclose is an ongoing duty throughout the process; therefore, should any further relevant information or document become available, it must also be disclosed.

If you are contemplating issuing a claim against your employer or former employer, you should seek qualified employment legal advice to ensure that you are submitting your claim within the requisite timescales, and to ensure that any claim submitted contains all of the information which you are required to include.

If you have been served a claim by an employee, you should contact an employment lawyer as soon as possible in order to ensure that your response is issued within the 28-day time limit and that it addresses all of the relevant points to minimise the risk of the response being rejected and/or the defence not being successful due to being improperly pleaded.