Last reviewed 11 March 2020

Employers will be aware that the day may come when they face a tribunal claim. But what, exactly, is the process for the bringing and hearing of claims? Ben McCarthy, lead researcher and employment law writer at Croner-I, provides an overview.

Employment tribunals have jurisdiction to hear more than 80 types of statutory employment-related claims, from discrimination to unfair dismissal and breach of contract. Their primary function is to assess a situation where an employee believes their employment rights have been breached by an employer and, if proven, provide a remedy to them. Although the number of tribunal claims continue to rise, they are technically a last-case resort for employees once discussions with their employer, and efforts to mediate the situation, have failed. Nevertheless, since the abolition of tribunal fees in 2017, employees have nothing to stop them from bringing a claim provided they do it within the specified time-frame; for example, those who feel they have been unfairly dismissed have three months from their dismissal in which to bring a claim. To this end, it is essential that employers are aware of the procedure that needs to be followed, alongside any obligations that are placed upon both parties.

The early conciliation process

If someone wants to make a claim against their employer in the employment tribunal, they need to first contact Acas for early conciliation. Acas will then take steps to conciliate the issue and prevent it becoming a claim, liaising with both parties to come up with a solution. For example, it may be that this situation could be resolved through the signing of a settlement agreement, which prevents further legal action being taken on that specific issue. Early conciliation will “stop the clock” as regards the time limit for lodging the tribunal claim for one month while the conciliator speaks to both claimant and respondent to explore whether they wish to conciliate. Since 2014, it has been mandatory for all claimants to go through the Acas early conciliation process. Where conciliation is unsuccessful or either party withdraws, the conciliator will issue a certificate, which the claimant will need in order to proceed to lodge their claim in the employment tribunal.

Submitting a claim to the employment tribunal

Following the early conciliation process, the claimant can present their claim to the tribunal. At this stage, the tribunal will decide if it is going to accept or reject the claim. If it does decide to go ahead with the claim, it will send it onto the employer and provide it with the opportunity to submit a response that outlines whyit believes the claim is wrong. Once the tribunal has the claim form and a response form (if sent) an employment judge will consider whether there are arguable complaints and defences. It is open to the judge to ask questions at this stage or to dismiss all or part of any claim or response. A claim or a defence can be struck out at any time if it is scandalous, vexatious, or has no reasonable prospects of success.

The tribunal hearing

There are four types of tribunal hearings; a case management discussion to agree on issues such as timeframes and witness orders, a preliminary hearing to assess certain points of law, such as demonstrating that a claimant is disabled, a main hearing or trial and, finally, a hearing to reconsider a judgment. Reconsideration may occur if a decision is made in the employer’s absence and it argues that it never received a claim form in the first place. There is no mandatory requirement to hold either a case management discussion or a preliminary hearing and many cases proceed directly to the trial of the issues. That said, all or any of the parties can request a case management discussion or a preliminary hearing at any time leading up to the trial.

During the main hearing, each side will have the opportunity to put forward their evidence. Anyone giving evidence is obligated to attend, give their evidence under oath, and be cross-examined. The tribunal itself will be made up of either a full panel of three or an Employment Judge sitting alone. Once the tribunal has listened to all the evidence, and any arguments both parties have put forward, they will retire to consider everything that they have heard and reach a decision. They will then outline their decision alongside the reasons for it, and confirm this judgment in writing. Occasionally, the judgment may take a couple of weeks before it is distributed to all parties. If the tribunal finds in the employee’s favour, there may be a further remedy hearing to determine compensation.

Appealing a decision

A common misconception is that employers can appeal a decision to the Employment Appeal Tribunal (EAT) if they are unhappy with the result. However, this is not the case. Appeals can only be lodged if a specific point of law is called into question. For example, in the recent case of Tesco v Tennant, the EAT held that the tribunal had wrongfully determined that a claimant was disabled, finding she did not meet the legal definition and therefore could not proceed in her claim. That said, rulings from the EAT and upwards will be binding on future tribunals. The story does not end with the EAT, with cases potentially being granted leave to appeal to the Court of Appeal and even the Supreme Court, formerly known as the House of Lords. Cases have also historically reached the European Court of Human Rights when there was a potential breach of EU law, however it is currently understood that this will no longer be the case when the Brexit transitional period ends on 31 December 2020.

The appeals process is important as it can serve to completely overturn a previous decision or, alternatively, a previous appeal against that decision. To give another example, in the case of Royal Mail v Jhuti the Supreme Court upheld an appeal against a Court of Appeal decision, that itself had upheld an appeal against an earlier EAT decision. Jhuti had looked at the real and “invented” reasons for dismissal, with the Supreme Court holding that tribunals should always work to establish the real reason behind a dismissal and if the decision maker has been manipulated by something that is invented. The Court of Appeal had disagreed, saying the focus should be on the mental processes of the person who made the decision to dismiss and not on a potential manipulator.

Conclusion

Tribunal fees are not returning any time soon and, with the great number of claims being presented to the tribunal, companies may face a prolonged period of uncertainty throughout the process. To this end, it is important that employers work to avoid this situation arising, ensuring that employment rights of their staff are not breached.