Employment Tribunals & Employment Disputes Guide
Employment Tribunals are the final step in resolving disputes between employers and employees. Employment Tribunals can often be extremely complicated matters, so seeking advice from an Employment Lawyer at an early stage is recommended.
Our guide to Employment Tribunals
EEmployment Tribunal claims are typically made by employees if an in-house resolution cannot be achieved. These claims can cover a number of different issues relating to employment and termination, including:
- Discrimination in the workplace
- Unfair dismissal
- Wrongful dismissal
In the past few decades, we’ve seen a radical change in the landscape of Employment Law. Correspondingly, regulations are constantly evolving and increasing in complexity. As such, it can be very hard for business owners to remain on top of current policies. We know that your priority is running your business, so why not leave the litigation to us? With decades of experience in representing employers of all sizes, we can handle your Employment Tribunal case.
In order to help you understand the processes involved, we’ve created a step-by-step guide to Employment Tribunals. Covering the Tribunal procedure, answering the most commonly asked questions we receive and explaining why legal advice is required, our guide will help you to fully understand the steps involved and move forwards confidently – supported by our Employment Law solicitors.
- Key points
- Why choose Nash & Co Solicitors?
- The Employment Tribunal procedure – explained
- Employment Tribunals – general FAQs
- How Nash & Co Solicitors can help you
- What’s next?
- Our Employment Law team will help you through the tribunal process.
- Whether your case is straightforward or complex, we’re here to provide you with practical and commercially minded advice.
- Your case will be run and managed by one of our highly qualified and experienced Employment lawyers.
- Our insight and experience can help to significantly reduce the time you spend dealing with legal proceedings.
Why choose Nash & Co Solicitors?
- We have a team of fully qualified Employment lawyers, all with a wealth of experience.
- We will always act in your best interests and ensure we do all we can to achieve the best possible outcome for you.
- We’re pragmatic and commercially sensible.
- We do what we say we will do – when we say we will do it.
- There will always be someone available to discuss your case.
- We pride ourselves on our exceptional client service standards and for that reason, have a great reputation for delivering a fantastic level of care.
The Employment Tribunal procedure – explained
ACAS Early Conciliation
As an employer, you will have likely heard of ACAS. They are a public body that is available to give advice to both employees and employers.
In 2014, a process was introduced called ACAS Early Conciliation. This means, in the majority of cases, a potential Claimant must contact ACAS and obtain an early conciliation certificate before they can issue an Employment Tribunal claim. The purpose of ACAS Early Conciliation is to see if disputes can be resolved (normally financially settled) before a claim is issued. Thereby, saving both parties and the Tribunal the time and cost of dealing with an Employment Tribunal claim.
There are two options once the potential Claimant has contacted ACAS – they can ask ACAS to contact their employer to begin a period of conciliation (which can last up to 1 month and 14 days) at the end of which a certificate is issued, or they can simply ask ACAS to issue the certificate without contacting their employer. This means that sometimes you won’t have any pre-warning that a claim will land!
Issuing a claim and submitting a defence
Once the potential Claimant has the certificate, they can then issue their claim (either online or by post). The claim form is then processed by the Employment Tribunal (due to backlogs, this can take several months). Then, it will be sent to the Respondent by post with confirmation that if they intend to defend the claim, they must file a response by a certain date. This is usually 28 days after the claim form is sent to them. If the Respondent does not file the defence in time, a default judgement is made. In essence, this means that the claim is successful, and a Respondent will only be able to participate in proceedings to the extent of arguing what compensation should be awarded. Not an ideal scenario so, the golden rule with Employment Tribunals, is to file your defence in time.
Around this time, you should also start collating evidence of jobs you say the Claimant could have applied for. In Employment Tribunals, rather strangely, the onus is on the employer to show that the Claimant has failed to mitigate their loss sufficiently. This could include issues such as the claimant not trying hard enough to secure an alternative job.
Where claims are not clear cut or are complex, the Tribunal will often list a date for a Preliminary Hearing. This is a case management/administrative hearing which the parties attend, together with a Judge. The purpose of the hearing is to clarify the claim/defence. Once this is established, directions will be set on how the remainder of the case should be dealt with.
- The Claimant preparing a Schedule of Loss. A document setting out what compensation they would like to receive in the event their claim is successful, together with any income they have received to mitigate their losses or what attempts they have made to get a new job if they have not yet secured one.
- Disclosure. This involves all parties sending each other copies of all of the documents relevant to the claim or defence. Whether helpful or not!
- Hearing bundle. The Respondent (normally) must prepare a bundle for the final hearing. This should be comprised of all the relevant documents that have been provided by the parties.
- Witness statements. Both parties must prepare written witness statements for use at the final hearing and exchange this simultaneously.
The Final Hearing
The final hearing will take place at an Employment Tribunal in person or by video. Most hearings are taking place by video at the moment due to COVID-19.
Final hearings can range from 1 day to several weeks. This is dependent on the size of the claim and how many witnesses are involved.
Employment Tribunals are relatively informal. Tribunal hearing rooms largely resemble a classroom with desks for the Tribunal Judge/panel, the witness and then the parties.
Final hearings are public hearings where judgements are published online.
They usually start by the Judge/Tribunal panel reading the salient documents in the bundle and the witness statements. Then the witnesses will give evidence (based on the contents of their witness statement).
Each witness will give evidence after swearing that they will the truth. Questions are then asked of them from the other side’s representative, the Judge/Tribunal panel and then sometimes their own representative.
Once the witness evidence is complete, both parties will make ‘closing submissions’, arguing why their respective claim/defence should succeed. The Judge/Tribunal panel will then retire to make their decision. Most decisions are unanimous.
The judgement will be delivered at the end of the hearing. This includes remedies (compensation), if the claim is successful. Alternatively, a written judgement is received in the post up to a few months later. If a written judgement is made in the post, and the Claimant is successful, a remedies hearing will then be convened.
We work with tried and tested, specialist employment barristers with competitive rates. We can act on your behalf at Preliminary and final hearings.
There is the opportunity to appeal Tribunal judgements by applying for a reconsideration (for the original Judge/Tribunal panel to reconsider their decision) or by applying to the Employment Appeal Tribunal. However, there are strict deadlines for appealing.
Employment Tribunals – general FAQs
What claims can be brought in an Employment Tribunal?
Employment Tribunals deal with a variety of claims, from unpaid wages to complex discrimination claims. There is no fee to bring a claim to an Employment Tribunal. The parties can either represent themselves or instruct lawyers/barristers to act on their behalf.
What are the time limits for bringing claims in an Employment Tribunal?
The time limit is normally 3 months from the date of the act complained of (e.g. dismissal). However, ACAS Early Conciliation extends the time limit (broadly by the time spent in Early Conciliation).
I hear a lot of legal jargon being thrown around regarding Employment Tribunals. Can you explain what some of the more common terms mean?
Claimant – refers to the person bringing the claim in the Employment Tribunal
Respondent – refers to the entity the claim is being brought against
Employment Tribunal panel – some types of claims are determined by a Judge sitting alone, others by a Tribunal panel. A panel consisting of three persons:
- a Judge (a former solicitor/barrister)
- two wing members (one from an employer background, for example, a HR professional)
- a person from the employee’s industry background (a trade union representative for example)
Preliminary Hearing – this is a case management/administrative hearing before the final hearing
Liabilities hearing – a final hearing to determine whether the claim should succeed or not
Remedies hearing – if the claim succeeds, there will sometimes be a separate hearing to determine what compensation should be awarded. Under those circumstances, liability and remedy are dealt with at the same hearing
How long does the Employment Tribunal process take?
It depends It depends on the type of case and the Tribunal that it has been designated to. This is usually the one nearest to where the Claimant lives. There is also a Tribunal backlog at the moment due to COVID-19. At present, we are seeing claims (between the defence and final hearing) take between 6 – 18 months.
Will I get my costs back?
Being awarded your costs in an Employment Tribunal is rare. A Tribunal will only award costs in exceptional circumstances. For example, if a Claimant has acted in a vexatious manner in bringing a claim, or if a claim had no reasonable prospects of success.
Can I bring a counter claim?
YYes – however, these circumstances are limited and are only permitted when a Claimant has brought a breach of contract claim.
When should I instruct lawyers?
Lawyers can be instructed at any stage of the Employment Tribunal process. However, it is best to get us involved as early as possible (from the ACAS Early Conciliation or defence stage). This will ensure the case is presented as well as possible from the outset.
What if I miss the deadline for filing a defence?
Don’t despair! Provided you have valid reasons for missing it, you can make an application for your defence to be accepted late.
How Nash & Co Solicitors can help you
Given that you can represent yourself at Employment Tribunals, you may be wondering why you should use a solicitor. Here are just a few reasons why our clients have chosen us to help them defend their Employment Tribunal claims:
Employment law is often (fairly) described as a minefield. Because of this, it means that claims are usually quite legally complex and often poorly pleaded. You need to understand the nature of the claim in order to be able to successfully defend it. Our Plymouth solicitors are experts in employment law. We will therefore ensure that you fully understand the basis of the claim against you (in simple terms, without legal jargon!) and how we will help you defend it.
Recent figures (May 2021) from ACAS estimate that management time spent dealing with litigation equates to £282 million per year. Unfortunately, this doesn’t surprise us at all. As you can see from the Employment Tribunal process, it’s lengthy with various hoops to jump through before you reach the final hearing. Of course, this can be made even more difficult if you haven’t had to defend an Employment Tribunal before. This is exactly why we act on your behalf: dealing with all the preparation required to meet the various deadlines and corresponding with the Tribunal and the Claimant, so you can carry on running your business.
Defending an Employment Tribunal claim isn’t simply saying what happened and subsequently hoping things will go right at the final hearing. It’s a jigsaw – you need all the pieces to complete your puzzle and persuade a Tribunal to believe your version of events. Consequently, it’s about finding all the relevant documents and thinking about every avenue of attack. With our wealth of experience as employment litigators, we make sure you are in the best possible position to succeed.
We believe that our rates for dealing with Employment Tribunals are very competitive (see our ‘Rates’ section for further details) but we will also consider cases pragmatically for you – we will always discuss the costs relative to the value of the claim to make sure you are making the best decision for you and your business.
Our team are experts in dealing with Employment Tribunals claims. Significantly, we’ve defended a large number of Employment Tribunals claims (of all different types) for a wide variety of businesses and industry sectors.
The Human Touch
We are not a call centre where you will be passed to a different adviser every time you call. We’re a specialist Employment law team, with vast experience and skilled lawyers. Consequently, you will have a dedicated team – including a qualified solicitor – working on your case and they will be available to speak to you by phone or email. We also take the time to understand you and your business and tailor how we deal with your defence accordingly.
If you’d like to know more about how we can help you when it comes to Employment Tribunals or if you’d like to arrange an appointment, please get in touch with us. You can reach our solicitors in Plymouth by phone on 01752 827081 – we’re here to help you through the whole process.
Moreover, to arrange a call back from our specialist employment solicitors, you can complete our contact form.