Employment Tribunal Process: What to Expect

Caragh Bailey
08/10/2020
237
10 min read
Employment tribunal process advice from employment law friend

This guide runs through the 8 stages of bringing an Employment Tribunal Claim and flags the timeframes and insider tips which could save your case from failing to reach Tribunal.

    1
    We review your claim
The first part of the process is to assess your position - is it worth it? A cost reward analysis needs to be done to work out whether you are better off simply finding a new job, or if the compensation makes it worth pursuing as well as getting a professional opinion on whether your case is strong enough to win at tribunal.

    2
    Grievance Process
Before taking your employer to tribunal you need to first raise a grievance. You can skip this stage at your peril as the Tribunal will have expected you to give your employer the chance to respond to your claim; to give their side of the story.


Without Prejudice
Throughout the process you may receive communications from your employer (or wish to send them), that are private, and not admissible in the case at tribunal. These cover negotiations for a settlement agreement in a legitimate, existing claim only. A settlement agreement is when you and your employer try to reach a resolution to the dispute, rather than take the case further. These communications must be labelled 'Without Prejudice'. This means that any settlement offers made are 'without prejudice' to the case - not admitting fault or liability. If you are discussing the matter in person, you must say: 'This meeting is without prejudice.' Before you begin.


    3
    ACAS process
You must tell ACAS that you intend to make a claim. They will offer you a free early conciliation service to help you resolve the dispute. You can refuse this service, but it may help your case to try early conciliation first.


Employment tribunal time limit

The time limit (limitation date) to make a claim to the employment tribunal is three months minus one day. In a case of unfair dismissal, this would be 3 months minus one day from the date of dismissal.

If you raise the issue with your employer first, it does not affect your time limit.

If the claim is about redundancy pay or equal pay your limitation date is 6 months.

If you choose to go ahead with ACAS early conciliation, the limitation date will be extended, so that you have time for the early conciliation process before you continue with the employment tribunal process.

If you do not want early conciliation, or if early conciliation does not solve your dispute, ACAS will give you a certificate with a number on it. You’ll have at least one month to submit your claim.

    4
    Submit Your ET1 Form
You must fill out an ET1 Form to submit a claim to the employment tribunal. You will need the number from your ACAS certificate to fill out your ET1.
The respondent usually has 28 days to reply to the employment tribunal in writing, explaining their side of things.

The tribunal will decide if they need to hold a full hearing to reach a decision on your case.
(If the respondent does not reply, the employment tribunal may make a decision without holding a hearing).

What do I do now?
Ask the respondent for documents that may help with your case such as your contract, pay slips, and their notes from relevant meetings at work. They can request documents from you too. The employment tribunal will tell you when you need to exchange documents, and how many copies to bring to your hearing.

Ask witnesses to attend if they can give evidence relevant to your case. If they say no the employment tribunal can order them to come, but you’ll likely be responsible for paying their expenses. You’ll have to apply to the tribunal office handling your case giving the witness’ name and address, reason for refusing to come and how their statement could help your case.

How long do employment tribunals last?

This will depend on your individual case.
You may be asked to attend a preliminary hearing where the employment tribunal will decide whether all of your claim will go ahead, or just part of it, as well as the date and time of your tribunal hearing and how long it should take.

Because of the global pandemic your hearing might happen over the phone or by video conference. It may be postponed altogether.

    5

    Tribunal Preliminary Hearing

Not all cases will require a preliminary hearing. They are held to help the Judge to better understand your case and to make arrangements for your main hearing, including:
  • Discussing your case
  • Deciding if any parts of your dispute should not be taken to the main hearing (be struck out).
  • Deciding the date of the main hearing
  • Agree for a Judicial Assessment to take place

What is a Judicial Assessment?

A Judicial assessment is an informal assessment, where a Judge tells you who they think will win the case, and how much compensation you might get. It might help you decide not to waste your time/money on a case you are unlikely to win, or it might persuade your employer to pay you a settlement agreement without taking the case any further. However, it will be based only on your ET1 form, and your preliminary hearing, so the more information you provide in those, the more accurate the assessment will be.

If your employer agrees, you can ask for a Judicial Assessment at the preliminary hearing, or, on the case management agenda form.


    6
    Mediation
Mediation is a process where a third party 'Mediator' helps you and your employer to discuss your dispute calmly and effectively. This may help you to negotiate for a settlement agreement instead of going to tribunal. Your solicitor will be able to best utilise the law to negotiate for a good settlement agreement.

Mediation can happen at any stage in the process and you may want to ask for it as soon as you've finished an unsatisfactory grievance procedure.

Mediation is only appropriate when your dispute is about your working relationship(s). If your dispute is about a clear breach of contract, mediation will not be helpful. Here are some examples of when mediation might be useful.
  • Bullying & Harassment
  • Communication problems
  • Personality clashes
  • Pay disputes
  • Wrongful dismissal
  • Gross misconduct

    7
    Tribunal and Appeal
Cases are normally held at the employment tribunal office nearest to where you worked.

You can take a colleague or companion for support. Don’t forget to take all of your documents.

  • You (or your lawyer, or a friend or relative) present your case. You may call witnesses to give evidence.
  • The respondent presents their case against you. If your case is about unfair dismissal, the respondent will present their case first.
  • The judge and the respondent will ask you questions. In certain cases, two other tribunal members might ask you questions too.

You don’t usually get the decision at the hearing itself. You will receive the decision by post a few days or weeks after the hearing.
The decision will also be published on GOV.UK

If you lose your case:

    8
    Settlement Agreement
If you win your case, the tribunal will order a settlement agreement. What exactly this is, depends on the type of case. The tribunal might give you some time after you've won to reach a settlement agreement with your employer, where you negotiate and agree on a suitable outcome, such as them paying you some money and giving you a reference for your next job. If you are unable to reach a settlement agreement then the tribunal can make the compensation award. They can order the respondent to:
  • Pay you any expenses that you’ve paid for your witnesses.
  • Improve your working conditions.
  • Give you your job back (unless the working relationship is too damaged).
  • Pay you compensation.

Frequently Asked Questions
The Respondent cannot prevent you from contacting other employees for evidence.
You should however bear in mind that other employees of the Respondent may not wish to involve themselves in the dispute, particularly if they remain employed by the Respondent.
Your confidentiality obligations to the Respondent (which arguably still exist after the termination of your employment) should also be considered when discussing the dispute with other individuals.
Some cases have limits on the amount of compensation that can be ordered.

If the respondent’s actions have lost you lots of money, this may increase the amount of compensation that they are ordered to pay. For example, Mr. Smith was unable to work after an unfair dismissal and lost many months of income.

Your compensation will also depend on your age, salary and how long you have been working in your job.
    1
    Contact the respondent first, to find out why they haven’t paid you.
    2
    The respondent will get a warning.
    3
    If they don’t pay you within 28 days of the warning they’ll be fined and named online by the government.
    4
    If they still don’t pay:
In England and Wales:
In Scotland:
  • Ask the office that heard your case for ‘an extract of the judgement’.
  • Ask your local sheriff officer to force the respondent to pay, using the extract of the judgement.
    5
    If they are unable to pay:

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This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of our company. For employment law advice please get in contact and speak to your employment law solicitors.
 
 
 
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