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Before an individual presents a claim at the Employment Tribunal they must first enter in to the ACAS Early Conciliation process in order to seek to attempt to resolve the issue. Our employment lawyers, can assist with this stage of negotiations and beyond and advise on strategy. It is sometimes not advisable to enter into early negotiations.
If a claim is brought against your business, and needs to be defended our employment lawyers are able to advise you with regards to the merits and value of a claim and any possible risks. We can prepare the case for hearing, including all of the relevant paperwork, preparation of witness evidence and compliance with Orders of the Employment Tribunal, and also assist with any possible settlement discussions, and strategy for moving matters forward.
You can be assured that the advice that we provide is commercial and pragmatic, and that it will help to steer your business to the best and most cost-effective resolution.
We also represent clients in the Employment Appeals Tribunal.
Frequently Asked Questions:
The Employment Tribunal is an independent Tribunal which makes decisions in legal disputes around employment law.
Employment Tribunals deal with claims that may be brought against employers by employees relating to their employment or its termination. In Northern Ireland they are called Industrial Tribunals.
Yes, Employment Tribunals are held in open court. Claims can, in theory, be reported in the press although whether they are or not will depend on whether any media outlets deem the story ‘newsworthy’ or not.
Yes. Early Conciliation (EC) is mandatory for all claims.
Before employees can lodge a claim at an Employment Tribunal, they must contact Acas and submit an EC form online. Acas will provide conciliation to attempt to reach a settlement.
The costs for defending an Employment Tribunal claim will vary on a case by case basis due to things like complexity, volume of documents and number of witnesses. Contributing factors to consider in relation to fees are things like:
• Drafting the ET3 form and response
• Defending applications to amend claims
• Applying to amend a response
• Whether the claim(s) are brought by litigants in person or whether the Claimant has legal representation. Litigants in person take up much more time and require more detailed guidance and explanation.
• Making or defending a costs application
• How complex any preliminary issues are such as whether the Claimant is disabled for the purposes of the Equality Act 2010 (if this is not agreed) or determining worker statues (i.e. whether the Claimant is an employee or not).
• The number of witnesses and therefore the number of witness statements to be drafted
• The number of documents to be considered
• Defending whistleblowing claims
• Whether the claim is a straightforward unfair dismissal claim or whether there is any discrimination and whether the alleged discrimination is claimed to be linked to a dismissal
• Whether there is any health and safety claim being alleged
• The cost of a barrister (Counsel’s fees), if necessary
• The length of the hearing
The Claimant is the only party who can withdraw a claim. However, employers often try and settle claims before they get to Tribunal.
It can make commercial sense to settle out of court if you can do so on reasonable terms.
Some employers choose not to settle because they believe a settlement would send the wrong message to other employees, and give rise to more trouble in the future.
However, you should weigh up the commercial and principle aspects.
You should always take legal advice.
The Respondent (you, as the employer) has 28 days to complete and return an ET3 form, along with what we call grounds of resistance (a detailed defence to the claim), to the Tribunal.
It’s very important that employers deal with the response form as a priority, preferably taking legal advice first. If the form is not returned in time, there may be a default judgment issued and you will not be able to defend the claim. Although you can apply to the Tribunal for an extension of time, there is no guarantee any extension will be granted and you need a good reason.
In the response, you should set out the main points of your argument and relate it to the relevant legislation where required. Holding back important information with the intention of surprising the employee at the hearing is not the correct strategy. The Tribunal may well penalise you by imposing costs, or rule that the late information is inadmissible.
The next stages usually include a preliminary hearing to set a timetable and iron out any preliminary issues and to list the final hearing. The Tribunal will send out instructions setting out the case preparation steps, this is known as giving ‘directions’. Examples of directions include dates for exchanging lists of documents, full disclosure and witness statements. The directions will also set out other relevant deadlines, including the hearing date.
The COVID-19 pandemic has induced changes to the way the Tribunal operates, meaning that in the vast majority of cases, hearings will be remote via Cloud Video Platform (CVP).
The parties must co-operate. Changes will likely include providing electronic bundles of documents or shortening the list of issues in a case by agreement to make the hearing time shorter.
The Tribunal is also facing a back log of cases due to the pandemic, meaning that it is taking much longer for cases to be allocated hearing dates. You should retain relevant documents and take witness statements from other employees at an early stage in case memories fade before the delayed hearing. Judicial mediation will involve less preparation than a Tribunal.
Yes. Unfair dismissal and constructive dismissal claims must be made within three months (less one day) of the effective date of termination of employment.
The effective date of termination (EDT) is defined as:
• The date on which the employee's notice expires (where the employee has been terminated with notice); or
• The date on which termination takes effect (where the employee has been dismissed without notice).
If a claim is not submitted in time, the claim will be barred (unless there is an exception and the time limit can be extended in certain circumstances). However, it is unlikely that a claim out of time will be allowed to proceed so it is vital that you lodge your claim in time.
If you do receive an ET1 form out of time in respect of your former employee, complete and return it, but clearly state as part of your defence that the claim is out of time. You should also ask for a preliminary hearing to determine the issue of the claim being out of time.
Claims that are not settled or withdrawn come before the tribunal for a formal hearing.
A preliminary hearing is typically a short hearing to address any issues so that the case can proceed smoothly on to a full hearing. By way of example, there may be issues that need to be determined and agreed prior to the final hearing if possible such as worker status (i.e. employee/ self-employed) or whether the claimant is disabled for the purposes of the Equality Act 2010.
A final hearing is a full hearing, where all evidence is heard.
Both parties will be guided by formal orders, or directions, from the Tribunal. It is important to ensure that you comply with all court orders and contact the other side or the Tribunal if you are unable to do so for any reason.
Typical orders include:
• Exchanging lists of all documents relevant to the claim. For example, the contract of employment, letters, emails, notes of meetings and any other paper or computer generated records, whether they help or hinder your case. The documents have to be agreed by both parties, and will be presented in a ‘bundle’ for the final hearing. Usually the Respondent prepares the bundle. All pages in the bundle must be paginated, with a contents page at the start. There are specific requirements for electronic bundles.
• Prepare your witness statements and any other witness statements from all witnesses who will give evidence at the hearing. Witness statements must be written in numbered paragraphs and will often cross reference documents that have been disclosed.
Anything that will help prove your case. Examples are employee’s contracts of employment, your staff handbook, details of your disciplinary and grievance procedures and any other correspondence, documents, meeting notes and witness statements which are relevant to the issues.
Witnesses will need to attend Tribunal as the Tribunal will want to hear your witnesses for themselves, and they will be cross examined.
All parties and witnesses must attend the Tribunal on time, whether this takes place in person or remotely via Cloud Video Platform (CVP).
Most Tribunal hearings are via CVP at the moment and you should assume this is the case unless told otherwise. When you complete your ET3 form, you will be asked whether you are able to attend a remote hearing or require any adjustments. This is your opportunity to detail any reasons you require an in-person hearing or need any adjustments.
At the hearing, the Employment Judge usually sets out the key issues and checks whether there are any preliminary matters that still need to be addressed.
In most cases, the witness statements have already been lodged and are what we call ’taken as read’. This means that they are the witnesses’ leading evidence unless the Tribunal says otherwise.
In some cases, the Judge may ask witnesses to read all or part of their statements out loud or clarify some crucial points. Each witness takes an oath before reading their statement or being asked questions by the ‘other side’ and then by their ‘own side’. The Judge may also ask witnesses questions.
Once all witnesses for one party have given evidence, then the other side’s witnesses will have their turn. At the end, both sides will ‘sum up’ their case, and the Tribunal will adjourn or, in some cases, give its decision immediately.
Tribunals try to limit the time that hearings take, and Judges have the flexibility to manage the proceedings as they see fit.
Depending on the time available, the decision (called a ‘judgment’) will be given. Judgment is not always given on the day of the hearing.
If the Tribunal reaches a decision in favour of the Claimant, depending on the type of claim, the Tribunal can award:
• Reinstatement (the Claimant gets their job back).
• Re-engagement (the Claimant returns in a new role).
• Payment of wages or monies due such as accrued but untaken holiday pay or notice pay. Reinstatement and re-engagement are rare outcomes, the main outcome is compensation and this differs for different claims.
The parties may wish to settle the dispute without going through a full hearing. This can be done by using a Settlement Agreement (see our Settlement Agreement FAQs) or by using something called a COT3 (this is done via Acas, is shorter and, unlike Settlement Agreements, does not need compulsory legal advice).
Settlement is often the best outcome for both parties, if it can be agreed. Responding to claims is a high cost for employers especially in management time.
Alternative dispute resolution is encouraged, such as mediation (we can also assist with this as we have trained mediators) and engaging in Acas Early Conciliation. Avoiding claims is even more critical since the COVID-19 pandemic as the Tribunal are seeing an increase in cases and they are taking longer to be listed and heard. Internal grievance procedures and negotiations with employees may lead to more settlement agreements as, given the backlog and delays at the Tribunal, even aggrieved ex-employees will likely prefer settlement rather than waiting for hearings which are taking years at the moment to reach final hearing.
What is the maximum amount an Employment Tribunal can award?
The Tribunal might not make an award at all: it might simply demand that the employee be reinstated (to their old job) or re-engaged (in another of similar standing). However, if an award for unfair dismissal is made, it will consist of two elements:
• a basic award, which is calculated in a similar way to a statutory redundancy payment based on age and length of service, subject to a weekly pay cap of £544.
• a compensatory award, which is calculated on loss of earnings both past and future (plus pension rights and reasonable expenses) which is subject to a cap of the lesser of 52 weeks’ pay or the rate set by the government each year (currently £89,493).
The compensatory award may be reduced if the Tribunal considers the employee to have been in part responsible.
Where employees have been sacked for whistle-blowing, or for pointing out health and safety breaches, the statutory cap does not apply.
There is also no cap on awards in discrimination cases. Discrimination cases also include an injury to feelings payment. This award is calculated using the Vento Bands. The lower band (£900 -£9,100) is used for "less serious cases, such as where the act of discrimination is an isolated or one-off occurrence". The middle band (£9,100 - £27,400) is used for "serious cases, which do not merit an award in the highest band". The top band (£27,400 - £45,600) is used for "the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race". Only in "the most exceptional case" should an award for injury to feelings exceed the top of this band.
An unreasonable failure to comply with the Acas Code of Practice means an Employment Tribunal can increase any award by up to 25% (or reduce it by up to 25% if the failure is by the employee). This is subject to the statutory cap (currently £89,493) and a minimum basic award of four weeks' pay, except in discrimination cases, where there is no statutory cap.
Yes, the decision can be appealed. You have 42 days from the date the notification of the decision is sent to you. It is the date of dispatch of the notice, not receipt, that is important. The appeal is limited to points of law. You should take legal advice before lodging any appeal.
If you are in need of help or advice about an Employment Tribunal within your business, or exploring it as an option, get in touch with us and one of our experts will be able to help you using the button below:
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