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Employment Tribunal Claims

Employment Tribunal Claims

Proceedings 

Generally all claims must be received by an employment tribunal (ET) within 3 months of the complaining act (ie 3 months less one day). However, this can be extended by Acas Early Conciliation by up to 1 calendar month plus 14 days.

The exceptions are claims for a redundancy payment, equal pay and unfair dismissal for taking part in official industrial action and unlawful exclusion/expulsion from a union which are all within 6 months and a claim for unlawful infringement of human rights by a public body, which is within 1 year. 

These time limits are strict and even if the claim is received by an employment tribunal a day late, the employment tribunal may decide that it cannot hear such a claim. The employment tribunal will decide whether it was either “reasonably practicable” for the claim to have been presented in time or whether it is “just and equitable” to extend time. Each test is based on the type of claim presented to the ET. 

Claims of unfair dismissal, wrongful dismissal and breach of contract cannot normally be brought until the employee's employment has actually ended. The date of dismissal to activate such claims is known as the effective date of termination. The exception to the rule is where an employee is employed during his/her notice period and in a redundancy situation where an employee’s terms and conditions of employment have fundamentally changed. 

Early Conciliation

In most cases, before an individual can present a claim to an employment tribunal, he/she must first notify Acas under Early Conciliation to allow an Acas conciliation officer the opportunity to settle the claim before it reaches an employment tribunal.  The exceptions are listed section 18A(7) of the Employment Tribunals Act 1996.  The most likely would be where the employer has contacted Acas before an individual and sought Early Conciliation. 

In order to commence Acas Early Conciliation, an individual must complete an online Early Conciliation notification form. After the form has been submitted, it will be automatically acknowledged, by email if the individual has an email account, or by post if not.

Acas will then aim to contact you within 2 working days.  The conciliation officer will talk to the individual (or someone on his/her behalf eg a solicitor) to see if the individual’s dispute can be settled without having to present a claim to the ET.

If a settlement cannot be reached, or the parties do not want to engage in any settlement discussions, the conciliation officer will issue a certificate with a unique reference number, which will allow an individual to bring an employment tribunal claim.

Procedures

The Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 set out the rules and procedures, which govern ETs.

An individual who brings a claim against his/her employer will be called the 'Claimant'. The employer defending such a claim will be called the 'Respondent'.

In order to commence proceedings in an employment tribunal, a Claimant must complete a Claim Form (ET1). The ET1 form can be obtained from the HM Courts and Tribunals Service website and must be completed in full. A Claimant will normally submit the ET1 online. 

Once an employment tribunal receives a claim, an employment tribunal will either accept it or reject it. An employment tribunal can reject a claim if the Claimant:

  • does not use the prescribed ET1;
  • fails to provide the minimum information in the ET1;
  • fails to provide the issue fee or remission application; or
  • provides an ET1 but there are substantive defects eg if the ET does not have jurisdiction to determine the complaints because a Claimant has not been employed by the Respondent continuously for 1 year.

If a claim is rejected, a Claimant can apply to the employment tribunal for a reconsideration if the decision to rejected the claim was either wrong or the error can be rectified. 

If the claim is accepted by the employment tribunal, it will inform the Claimant of this and send a copy to the Respondent. 

The Respondent will then have 28 days from receipt of the ET1 to defend the complaint(s). The Respondent must complete a Response Form (ET3) if it wishes to contest the Claimant’s claim. The ET3 can be obtained from the HM Courts and Tribunals Service website and must be completed in full. 

The Respondent may apply for an extension of time within which to present its response explaining why it cannot comply with the time limit.  A Claimant may object to the Respondent’s application within 7 days of receiving it. 

As with a claim, an employment judge may decide not to accept a Respondent’s response if the prescribed ET3 has not been used or it does not provide the required information or that it has been received out of time. In such case, the Respondent can apply to the employment tribunal for a reconsideration if the decision to rejected the response was either wrong or the error can be rectified. 

Where a Respondent does not present a response in time or decides not contest a claim. An employment judge can make a judgment in favour of a Claimant if there is sufficient material to do so. Otherwise a hearing will be fixed to determine the claim.

As soon as practicable after the employment tribunal receives an ET3, an employment judge will consider the ET1 and ET3 and will determine whether there are arguable complaints and defences. The employment judge may determined that the entire or parts of either the ET1 or ET3 should be dismissed as the employment tribunal has no jurisdiction to consider it (ET1 only) or it has no reasonable prospects of success.

If the ET1 and ET3 are accepted, an employment judge will give directions for the management of each case, together with time limits for compliance with those directions. This will normally involve disclosure of documents in the parties’ possession, details of the compensation which the Claimant is seeking with supporting documents, the preparation of a bundle of documents for the hearing and the exchange of typed witness statements.

An ET will notify parties of a final hearing by way of a formal notice. The length of the final hearing will be dependent on the complexity of the issues and the number of witnesses giving evidence.

At the final hearing, the case will normally be heard by an employment judge (who is legally qualified and either a barrister or solicitor) alone. If the case is one of discrimination, in addition to an employment judge there will normally be two wing members: one will usually have a union background and the other member human resources background.  Decisions are made between the employment judge and the two wing members. A decision does not have to unanimous and indeed the employment judge can be outvoted. In certain cases, an employment judge may sit alone (ie without wing members).

An ET may either on its own initiative or on the application of either the Claimant or Respondent list the case for a preliminary hearing to determine certain preliminary issues.

Remedies 

If a Claimant is successful at the hearing, an ET can make financial awards (dependant on the complaint) as follows: 

  • compensation ie the amount claimed eg non-payment of wages
  • a compensatory award (unfair dismissal cases only): loss of wages after dismissal, including pension contributions and/or unpaid wages and/or failure to pay notice money;
  • a basic award (unfair dismissal cases only);
  • a statutory redundancy payment;
  • a protective award (in collective redundancy situations only); and
  • injury to feelings and interest (in discrimination cases only).

Compensatory awards

There is a statutory maximum amount on compensatory awards for unfair dismissal, which is the lower of 12 months’ pay or £83,682*. This is based on the employee's losses after the deduction of income tax and National Insurance contributions to the date of the hearing and future losses (based on the length of time the employment tribunal decides it would take for the employee to be in the same financial position that s/he was in before the dismissal. In an unfair dismissal case, an employment tribunal will also make a basic award (based on the employee's age and length of service), unless s/he has received a statutory redundancy payment, which is a maximum of £15,240* (and changes annually) *figures for 2018-2019

There is no upper limit on the compensation an ET can award in discrimination claims and in unfair dismissal claims where the Claimant was dismissed for raising a health and safety issue or making a protected disclosure.

In a successful claim of unfair dismissal, in addition to compensation, the Claimant can request that the employment tribunal order reinstatement or re-engagement, ie the same job or similar job with the Respondent. If a Respondent fails to comply with such an order, an ET may make an additional award of between 26 and 52 weeks’ pay. In relation to complaints of unfair dismissal, wrongful dismissal and breach of contract an ET will expect a Claimant to have "mitigated their loss". This means reducing his/her financial loss ie the steps taken to find alternative employment. This does not necessarily mean the same type of employment. At first, it may be reasonable for a Claimant to look for jobs on a similar salary and in a similar area to his/her old job. However, as time goes by, a Claimant will be expected to consider work, which may be less well paid, part-time or in a different area to the previous job.

A Claimant must prove s/he has mitigated his/her loss and will be expected to provide the ET with evidence that s/he has claimed Income Support or Jobseekers Allowance from the Benefits Agency and kept all paperwork in support of finding new work, such as: newspaper adverts; copies of any applications for jobs and rejection letters.

An ET can reduce awards for unfair dismissal if:

  • it considers the Claimant has failed to mitigate his/her loss; and
  • it considers that a Claimant has contributed towards his/her dismissal by his/her conduct. This reduction can be up to 100%; and
  • it finds the dismissal to procedurally unfair but determines that if the Respondent had followed a fair procedure the Claimant would have been dismissed in any event.

An ET can also make an award of costs and expenses against either party and/or its representatives in certain circumstances to a maximum of £20,000. If a party is unrepresented then an ET can make an award for preparation time, which is currently £38* per hour again to a maximum of £20,000. (*This figure increases by £1 each year on 6 April).

Contact our experience employment tribunal solicitors today

IBB's employment law experts represent employees at tribunals and deal with a range of issues including unfair dismissal, discrimination,  collective redundancy issues and more. If you feel that you have been treated unfairly by your employer, you may be able to bring a claim against them.

Contact our specialist employment tribunal claims solicitors on 03456 381381 for further information .  Alternatively, please email your details to employment@ibblaw.co.uk.  

Marc Jones

Marc Jones

Partner marc.jones@ibblaw.co.uk 01895 201719