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Tribunal procedure

Making a claim to an employment tribunal

In most cases, the deadline to issue proceedings in the employment tribunal will be three months less one day from the date of the act you are complaining of, e.g. dismissal, an act of discrimination, when you should have been paid. If your complaint relates to non-payment of a statutory redundancy payment or equal pay, you have six months in which to issue a claim.

Prior to issuing you need to contact the conciliation service ACAS to commence Early Conciliation (EC). EC is a free service designed to give individuals and employers a chance to resolve matters before proceedings are issued. If EC is unsuccessful you will be given a Certificate Number, which you will need to put on the employment tribunal claim form you submit to the tribunal. The actual deadline to commence a claim in the Tribunal will depend on when you start EC and the date the certificate is issued.

The Employment Tribunal system is entirely free and there are no fees to pay.

Depending on the type of claim, your case will either be heard by a specialist employment judge sitting alone, or by a panel comprising of an employment judge and two lay members (one from an employee, and one from a business background). Tribunals normally sit between 10.00 am and 4.00 pm, with an hour break for lunch. There are no wigs or gowns in the tribunal, although everyone is expected to dress smartly. In most situations, the hearing will be open to the public. Therefore, don’t be surprised if members of the public, law students or members of the press are seated in the room.

The tribunal will have copies of the agreed bundle of documents and the witness statements.  Once each witness has been called to give their evidence, and the each party has had the opportunity to cross-examine the other party’s witnesses, the tribunal will ask each party to make their closing submissions. Submissions are a party's opportunity to summarise their case to the Tribunal. The judge (or panel) will then retire to consider their decision.  Wherever possible, they will try to give their decision the same day. If this is not possible, e.g. because there is not enough time left in the day, the decision will be ‘reserved’ and communicated to the parties in writing at a later date.

The following sets out an outline of the usual tribunal process

  • ET1 Claim form submitted by claimant (usually within 3 months of the date of the act complained of) - you can download a claim form or claim online at employment tribunals
  • Respondent has 28 days to file a Response (ET3)

  • Each party informs the other of what documents they are to use and discloses those documents

  • A fully paginated bundle of documents will be prepared (usually by the Respondent if it is legally represented and the Claimant is not) of the documents each party wishes to use

  • The parties exchange witness statements

  • A hearing takes place

Each party may make applications to the Tribunal, for example, to strike out a claim that a Respondent believes has no merit or for an order for disclosure of specific documents.

There may be a Case Management Discussion which the parties attend to agree the issues of the case, and for the judge to make directions (the dates for exchanging documents, statements or even expert reports, listing the matter for hearing).

In some cases, although the Tribunal may find in favour of the Claimant at the hearing, the amount of damages to be awarded could be heard on another day, if for example, expert reports are required where there has been psychiatric illness as a result of discrimination.

Sometimes a Judgment is given on the day of the hearing but often judgment is "reserved" and the parties attend a later hearing of the judgment or it is given in writing.

Remedies

A claim submitted to the Employment Tribunal may consist of some or all of the following:

  • Compensation for dismissal
  • A basic award (calculated by length of service, age and wages)
  • Loss of and future loss of earnings
  • Loss of unfair dismissal protection
  • Compensation for discrimination
  • Any lost earnings and benefits
  • Injury to feelings
  • Aggravated damages
  • Personal injury where there has been a resulting psychiatric illness
  • Interest

In some cases, a declaration rather than damages may be sought for example, a declaration that an employer has unlawfully deducted wages.

Enforcement of a decision

The Employment Tribunal does not have the powers to enforce a judgment - any judgment which is in monetary form can be enforced using the powers of the County Court - an application is made using Form N322A.  Once registered, it becomes a County Court judgment and the County Court enforcement procedures are available which include asking the Court bailiff to attend the employers premises to collect payment (and/or seize goods to the value of the award); asking for a third party debt order or obtaining a charging order or attachment of earnings.

Review of decision

If you believe that a decision was wrongly made as a result of an administrative error, that you did not receive notice of the proceedings leading to the decision, that the decision was made in the absence of a party, that new evidence has come to light or the interest of justice require it, you can ask the Tribunal to review their decision.

A request for a review of a decision must be made within 14 days of the date the decision or within 14 days of the date the decision was sent to the parties where judgment was reserved.

Where a judge agrees that a decision will be reviewed, it is normally reviewed by the original Tribunal.

Appeals

Where a decision contains an error of law, it can be appealed to the Employment Appeal Tribunal.  Any appeal must be lodged within 42 days of the date on which the Tribunal decision was sent to the parties.

The applicant must show:

The Tribunal misdirected itself in law, or misunderstood or misapplied the law; or the decision was perverse in that there was no evidence to justify the conclusion that was reached.

Costs

In most cases, each party has to bear their own costs of bringing or defending a claim however, the Employment Tribunal (or Employment Appeals Tribunal) may order costs if it was of the view that a party has acted vexatious, abusively, disruptively, or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived.

Which? Legal can help

Which? Legal has a team of employment law experts on hand to advise you on your rights and how to making make a claim to an employment tribunal. We can also advise you on how to prepare for the tribunal, the documents you need to provide, and guide you step by step through the tribunal hearing process.   

 

 

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