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Here is a brief overview of employment claims and employment tribunal procedure.
Limitation deadline
The rules about deadlines for using or losing the right to bring an employment tribunal claim are complicated. If you are unsure, please contact us for immediate advice.
Claims for unfair dismissal must be brought within three months less one day. For example, someone dismissed on 15 March must submit a claim no later than midnight on 14 June the same year. The same time limit, known as a “limitation period”, applies to claims of discrimination which are timed from the last act of discrimination. Other claims may have different limitation periods.
ACAS early conciliation
Every claim has to go through the ACAS pre-claim conciliation process. Conciliation is started online where further information is available http://www.acas.org.uk/earlyconciliation.
In all but the simplest cases this process is generally ineffective. However, time ceases to run for the purposes of the limitation period during ACAS early conciliation. Provided that a claim is within time when put into the pre-conciliation process, the process extends the limitation period.
ACAS early conciliation lasts for up to 6 weeks. Either party can choose to end it sooner. It ends with the Claimant being given a numbered conciliation certificate to show compliance. The number on that certificate is required on the ET1 when lodging a claim to show that the ACAS early conciliation process has been undertaken. It is possible to proceed to lodging a claim without full conciliation if the Claimant simply obtains an ACAS certificate and opts on the ACAS website not to have early conciliation.
Employment tribunal fees no longer apply
Employment tribunal fees were abolished in July 2017. The Supreme Court ruled that charges of up to £1,200 to bring an employment tribunal claim were unlawful, disproportionate and denied access to justice. The Supreme Court’s decision is of major constitutional importance.
Preparing the claim (ET1)
To bring a claim the Claimant completes a claim form known as an ET1.
A well drafted claim takes account of circumstances surrounding the case. Anyone can draft and submit a claim. To do it well and to avoid missing important details and legal issues requires advice from a good employment solicitor. They draft a schedule that accompanies the ET1 expanding the details of the claim in more complex cases. This schedule is sometimes referred to as the “Grounds of Complaint” or “Details of Claim”.
The ET1 requires the full name and address of the employer and the full address of the place where the Claimant worked, if different. Discrimination and whistleblowing (public interest disclosure) claims sometimes name colleagues as additional Respondents where they were responsible for the detriment suffered.
Defence or response (ET3)
If the tribunal accepts the ET1 it will be served on the Respondent who will have 28 days from the date of receipt to submit a defence, known as a response or ET3, to the tribunal using the form provided. The ET3 states whether the Respondent intends to resist the claim and sets out the grounds on which the Respondent relies. Professionally represented Respondents usually submit a schedule with their ET3 setting out more detailed information to support the defence. This schedule is usually called the “Grounds of Resistance”. Respondents should consider using specialist employment solicitors such as Cambridge Legal Practice to draft an effective defence. A Respondent may lose the right to defend the claim if the ET3 is not submitted in time.
After receipt by the tribunal, the ET3 will be sent to the Claimant’s solicitor. Experience suggests that tribunals often take a week or two to forward documents received, so it usually takes more than just a few days.
Case Management Orders and Preliminary Hearings
An employment judge then reviews the ET1 and ET3 and either sends the parties a written “case management order”, setting out a timetable to prepare the case for final hearing, or sets a date for a “preliminary hearing” to take place by telephone or at the tribunal itself during which a case management order is made. A preliminary hearing enables the judge to decide the timetable after hearing from the parties’ solicitors.
At a preliminary hearing the judge will need to know any dates that the parties, their witnesses and their advocates will not be available to attend so that mutually convenient hearing dates can be agreed. Before the preliminary hearing tell your solicitor any dates to avoid such as for booked holidays and hospital appointments.
The case management order generally sets dates to:
- obtain and exchange expert reports (if required)
- serve on the Respondent the Claimant’s schedule of loss setting out details of the compensation claimed
- prepare and exchange with the other party a list and copies of all documents they have that are relevant to the case
- prepare an indexed and paginated bundle of documents. Tribunals usually make employers responsible for preparing several copies of the bundle for use at the hearing.
- exchange written witness statements (which the solicitors prepare)
- hear the case
The length of hearing depends on the complexity of the case and the number of witnesses each side intends to call.
When the timetable has been set, witnesses should diarise hearing dates. Tribunals are strict about hearing dates and will not change dates unless they believe there is a very good reason to do so.
Watching an employment tribunal
Before the hearing we recommend that you arrange to watch a tribunal hearing (with your witnesses, if possible). Employment tribunals are open to the public and as long as you quietly sit in the room you will be a welcome guest. Knowing what to expect when it comes to your own tribunal is likely to make you feel more comfortable about the process and procedure. Additionally, we recommend our article ‘Being a witness at Court or in an Employment Tribunal’.
Evidence
You will provide the main witness evidence in your case. Whether or not you need other witnesses in support is something you should discuss with your solicitor. Witness statements taken from people who are not prepared to be cross examined about their evidence are of little worth. Witnesses therefore need to be free and willing to attend the final employment tribunal hearing.
Keep knowledge of, and discussion about, your case limited to those who have to be involved. People pass information to others easily. Your best allies may not be good at keeping confidential information to themselves or even recognising what is confidential or what should not be repeated. It does not matter which side of a dispute you are on, it is generally better to keep information to yourself and to resist the temptation to talk. Typically, this is more difficult for Claimants who, other things being equal, often confide in those from whom they require support and encouragement.
Both parties have a duty to disclose all relevant documents, even those that are not helpful to their case. These are revealed when lists of your documents are exchanged, as mentioned above.
Mitigation evidence
Claimants seeking compensation based on the time when they are not working must take active steps to find suitable new employment. This is known as attempting to “mitigate loss”. Claimants should register with employment agencies, on-line job sites and with the Job Centre. They should regularly search appropriate newspapers, trade press, and online sources for vacancies.
Claimants should keep comprehensive documentary evidence to show the steps taken to mitigate their loss. If Claimants cannot show that they have taken reasonable steps to mitigate their loss, tribunals may reduce any compensation awarded.
The Hearing
For further information, see our article ‘Being a witness at Court or in an Employment Tribunal’.
The overriding objective of the tribunal is set out in the Employment Tribunals Rules of Procedure. It is to deal with cases fairly and justly which includes as far as practicable ensuring that the parties are on an equal footing, dealing with matters proportionately in relation to their complexity and importance, avoiding formality and seeking flexibility, avoiding delay, and saving expense. The objective is good; the reality is a reminder that we are dealing with human rather than divine justice and keeping everyone happy is virtually impossible.
Judgment
Depending on how long the hearing lasts, it is possible that the tribunal will “reserve” its decision. You may then have to wait for the written decision. If the decision is reserved it can take several weeks or months before you receive it.
The unsuccessful party has 14 days to apply for the tribunal to reconsider its decision and 42 days to appeal. Appeals are only allowed on points of law, and not simply because a party disagrees with the tribunal’s decision, and are made to the Employment Appeal Tribunal (EAT). See our article ‘Appealing Employment Tribunal Decisions’.
Sometimes insufficient time is allowed at the original “liability” hearing to determine “remedy”. If so, you can end up with a separate hearing, known as a “remedies hearing” to decide how much compensation should be paid following the “liability” hearing.
Settlement
Most employment cases settle before the final hearing. Settlement agreements (formerly known as a compromise agreements) negotiated by direct discussion by solicitors are used to set out the agreed terms and often include an agreed form of reference.
Another form of settlement agreement using ACAS does much the same thing but typically in less detail. This is known as a COT3. The parties’ solicitors tell ACAS what clauses to include.
Our article ‘Settlement & Compromise Agreements’ gives further information on settlement agreements.
“Fortune assists the bold.” Virgil
For further information on any aspect of employment law, particularly if you are looking for specialist employment solicitors in Cambridge, contact Cambridge Legal on 01223 776200 or email enquiries@cambridgelegal.co.uk