What to expect in an Employment Tribunal claim
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One of the functions of an Employment Tribunal is to hear certain disputes between employers and employees. They differ from County Courts and the High Court; they are less formal (for example, no-one wears wigs or gowns) and they have their own procedure, the Employment Tribunal Rules (ET Rules). Tribunals have an "overriding objective", to deal with cases justly. This includes, so far as practicable, ensuring that cases are dealt with fairly and in good time and in ways which, while proportionate to the complexity or importance of the issues, minimise expense and keep the parties on an equal footing. The ET Rules also provide tribunals with their own terminology:
- You will make a "claim" on form ET1 and will be referred to as the "claimant".
- The Respondent will submit a "response" (its defence) on form ET3 and will be referred to as the "respondent".
Tribunal claims are heard in public, (meaning that they can be reported) by either a panel of three; a legally qualified employment judge and two lay members, one who is drawn from employers' organisations and the other from employees' organisations (although each member of the tribunal is impartial) or by an employment judge sitting alone. In claims of unfair dismissal or constructive unfair dismissal, it is quite common for an employment judge to hear the case alone without any lay members. In claims where discrimination or more complex issues have been pleaded, it is more common for a panel of three to hear your claim. In this way, the lay members' practical expertise is added to the legal expertise of the employment judge.
There may be preliminary hearings at the tribunal as part of the process of preparing for the full hearing. Any such hearings are likely to take place before or be conducted by an employment judge alone. Tribunals are increasingly using telephone conference facilities to conduct preparatory hearings.
Once your Claim is submitted
Once the tribunal has accepted your ET1, it will send a copy to the Respondent. As this firm will be identified as your representative, all future correspondence from the tribunal will be sent to this firm and not to you. The Respondent will then present its ET3 and a copy of this will be sent to me before an employment judge reviews both the ET1 and the ET3 to decide the most appropriate steps to be taken in preparation for the full hearing.
The tribunal will then either send both parties a written "order for directions", setting out those steps, or set a date for a “Preliminary Hearing Case Management” discussion (PHCM) to take place, either by telephone or at the tribunal itself. If a PHCM is considered appropriate, an employment judge will hear argument from both parties as to which steps are necessary and will make an "order for directions" during the PHCM. You will not be required to attend a PHCM if it takes place at the tribunal (although you can, of course, do so if you wish).
Tribunal Directions: Preparatory steps to a full Hearing
Whichever method the tribunal adopts (a written "order for directions" or a PHCM), it is likely to provide for:
- Provide further information regarding your complaints.
- Provide medical records and associated statements if required.
- Each party to prepare and exchange a list and copies of all documents that they have that are relevant to the issues in the proceedings.
- Preparation of an indexed and paginated documents bundle. Tribunals tend to make employers responsible for the preparation of several copies of the bundle for use at the tribunal hearing.
- Prepare and serve on the employer a schedule of loss setting out details of the financial compensation claimed together with details and copies of documents relating to your attempts to "mitigate" or reduce that loss, for example, by looking for a new job.
- Any expert reports to be obtained and exchanged.
- Preparation and exchange of witness statements.
- Fixing dates for the claim to be heard by the tribunal. The number of days set aside for the hearing will depend on the complexity of the claim and the number of witnesses that each side intends to call.
Tribunals usually expect to deal with both the merits of a claim (whether the claimant wins or loses) and any remedy (including the amount of any compensation) at a full hearing, not within Directions or a PHCM, if required.
Throughout your claim, it is essential that you do your upmost to mitigate your loss. Mitigating your loss means your attempts to try to find alternative employment. It is very important that you are able to show the employment tribunal that you have done your upmost to try and find new employment. It is therefore imperative that you keep an extensive record as to any jobs that you have applied whether this be, online, through an agency, via your job seekers requirements or any other methods you use to try and mitigate your loss. It is helpful if you could print or take copies of any applications you make in order for me to present your searches to the Respondent and the tribunal. In addition to any applications you have made, I will also require copies of any rejections that you have received.
It is your responsibility to mitigate your loss and provide me, as your legal representative, with the evidence to demonstrate your attempts. If you fail to sufficiently demonstrate to either the Respondent or an employment tribunal that you have done your upmost to mitigate your loss, this may cause the Respondent or the tribunal to limit any compensation/settlement you may receive.
If you do manage to obtain alternative employment, it is important to be aware that for each pound that you earn in new employment, a pound will be deducted from your claim for compensation. If you are presenting a claim for discrimination, the award applicable to this will not be affected by you obtaining alternative employment.
The Tribunal’s Decision
Depending on how long the hearing lasts, it is probable that the tribunal will "reserve" its decision. How long before we take receipt of the written decision will depend on the tribunal's workload, but it can be several weeks or months before a decision is issued and received.
Once the written reasons for the tribunal's decision are sent to the parties, the unsuccessful party has 14 days to apply for the tribunal to review its decision and 42 days to appeal. The grounds on which a tribunal can be asked to review its decision are limited. Appeals are only allowed on points of law (and not because a party disagrees with the tribunal's decision) and are made to the Employment Appeal Tribunal (EAT).
In addition to the cost of bringing or defending an employment case, there are a variety of additional factors, such as the time it can take up, the stress it can cause, the risks and uncertainty of litigation and the impact of publicity, that may make settlement an attractive option for either party. The vast majority of employment cases do in fact settle before final hearing. There are two possible means of settlement:
- Through ACAS (the Advisory, Conciliation and Arbitration Service). ACAS receives a copy of the ET1 and ET3 in each tribunal case and a conciliation officer then contacts the parties, offering to assist in facilitating a settlement. ACAS officers do not express opinions on the merits of claims and do not provide legal advice, their role is that of a knowledgeable go-between.
- By means of a settlement agreement negotiated by direct discussion between the parties' representatives.
Terms of settlement frequently involve the payment of financial compensation from employer to employee and, in return, withdrawal of the claim from the tribunal and an agreement that both parties will keep the terms of the settlement confidential. A settlement can also include non-financial aspects such as agreeing the wording of a reference letter.
If you find yourself in a situation where you are taking your employer to an Employment Tribunal, we can help.
Please remember there are strict time limits in Employment claims and you should take good free legal advice as soon as possible.
In addition to No Win No Fee, Lawson-West solicitors act for our clients on a variety of other funding arrangements including Legal Expenses insurance funding. We can assess your case to decide which is the best funding option for you.
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