Sometimes employees believe that they have not been treated fairly under their range of statutory rights. In the first instance they should take up any concerns with their employer, who should take all such complaints seriously and resolve them in-house. But there will be occasions when someone wishes to take matters further and apply to an employment tribunal to hear their case, writes Val Moore.

There have been some changes to the procedures in the last year.

  • As of 6 April 2014 claimants must contact Acas before submitting a claim to the tribunal, or the tribunal will reject the claim.

  • As of 29 July 2013 claimants must pay a fee to lodge a claim.

There are time limits within which a claimant may apply to the tribunal. The most common time limit is three months, although for claims regarding equal pay or statutory redundancy pay the time limit is six months.

Employment tribunals do, however, have a limited discretion to consider applications for an extension of time for complaints.

Criteria for making a claim

Prospective tribunal claimants must contact Acas before submitting a claim to the employment tribunal. The aim of this is to allow early conciliation to take place in an attempt to resolve disputes without recourse to the tribunal system. The conciliation process can take up to six weeks.

There is, however, no obligation on either party to engage in the conciliation process or to settle, and there is no penalty for a claimant (or a respondent, ie the employer) who simply refuses to engage in the conciliation process.

Should the claimant wish to proceed to an employment tribunal they must:

  • use the prescribed Claim Form (ET1)

  • place on it a unique reference number supplied by Acas (without which the claim will be rejected)

  • submit it through the Employment Tribunals Service website.

In England alternatively they may submit to the Leicester processing centre or hand it in to a specified employment tribunal office. It cannot be done by fax or email.

Fees

The fees payable by the claimant are divided into two categories.

Type A claims are straightforward claims for defined sums, eg sums due on termination of employment such as redundancy pay, holiday pay or unauthorised deductions from wages.

Type B claims are more complex and include claims for unfair dismissal, discrimination, equal pay and whistleblowing.

Fees are payable in two parts: an issue fee when presenting the claim (£160–250) and a hearing fee (£230–950) dependent upon the claim type (A or B).

Fees are not refundable. In some circumstances (eg low income) part or all of the fee may be excused.

A copy of the ET1 will be sent to the respondent.

Failure to file a Response Form

It is important that the respondent files a Response Form (ET3) within the relevant time limit, otherwise the tribunal will issue a default judgment on liability unless it has sufficient evidence to conclude that the respondent did not receive the ET1 (eg if it was sent to the wrong address).

The process

Initial assessment

The employment judge will conduct an initial paper assessment of the claim to establish whether the claim or its defence is weak. If there is no arguable point they may dismiss the claim/response.

Preliminary hearing

A preliminary hearing will:

  • determine whether the tribunal has jurisdiction to hear the case

  • hold case management discussions

  • consider an application for a deposit by either party

  • consider whether the claim/response, or part of it, should be struck out (dismissed).

Withdrawal of a claim

A claimant may withdraw all or part of their claim.

This can be done orally at a hearing or in writing beforehand. The claim, or part thereof, will automatically be dismissed by the tribunal.

Where the withdrawal of the claim follows an Acas settlement, the proceedings will be automatically dismissed provided both parties to the settlement have confirmed in writing that they understand that the proceedings are to be dismissed following withdrawal.

Final hearings

It is possible for certain cases to be determined without a final hearing, but all parties to the proceedings must give their written consent to this. In place of the hearing, the employment judge will determine the case by examining all the documentary evidence.

Unless the tribunal has indicated otherwise, a case will normally be listed on the basis that all of the issues raised in the Claim Form will be dealt with at a single hearing (known as a “final hearing”). Simple cases will usually be listed for a final hearing without any preliminary hearing taking place.

Procedure at final hearings

All documents to be used in the hearing should be exchanged in advance, tidily presented in a bundle with a clear and properly referenced contents list.

An employment tribunal has wide discretion to conduct hearings in a way that it considers most appropriate to clarify the issues and deal justly and efficiently with the case.

Generally the tribunal will sit as a panel of three members, including an employment judge governing the proceedings.

Since 6 April 2012, however, straightforward unfair dismissal cases (ie those where the claim is for unfair dismissal only and in which there is no material dispute over the facts) are normally heard by a judge sitting alone.

The employment judge has the power (at his or her discretion) to timetable the evidence, ie allocate a maximum amount of time that each party has to present their evidence and their final submissions. If a party exceeds its allocated time, the judge may then prevent that party from continuing.

Judgment and remedies

The tribunal will give either oral or written reasons for any judgment.

The relevant statute under which the case is brought will normally provide possible remedies. The tribunal can order only remedies that are designated by legislation.

Costs

Parties involved in a tribunal claim inevitably incur costs, typically in respect of legal advice, preparation of the Claim Form or Response Form and/or representation at the hearing.

Although in most cases the parties pay their own costs, tribunals do have the power to make a standard costs order against either party for any costs incurred by the other party in certain defined circumstances.

Right of appeal

An appeal against the decision of an employment tribunal can be taken to the Employment Appeal Tribunal, but only on a point of law.

Last reviewed 8 July 2014