The majority of claims against employers, except those for personal injury, will be brought in the Employment Tribunal. Typical examples of employment tribunal claims are claims for unfair dismissal, discrimination and disputes in relation to trade union memberships.
Starting a claim
The majority of employment disputes must first be referred to the Advisory, Conciliation and Arbitration Service, more commonly known as ACAS. The dispute will then undergo a process called early conciliation. This is intended to resolve a dispute before going to a formal tribunal. The ACAS process avoids the formalities of a tribunal and aims to help the parties reach a legally binding agreement. At early conciliation the Claimant will be given a certificate with a reference number
If the parties are not able to reach an agreement via ACAS the next step is for the Claimant to start their claim in the Employment Tribunal. This must be presented on Form ET1 and include certain information, including the ACAS early conciliation number or confirmation that there is an exemption from this requirement. The Claimant must also provide the names and addresses of the proposed Claimants and Respondents. Failure to comply with the requirements will lead to the Employment Tribunal rejecting the claim.
Responding to a claim
Following an accepted claim, the Tribunal will send a copy of the claim form along with the prescribed response form, Form ET3. The Tribunal will also send details of how to submit a response, when the response must be received and the consequences of failing to reply in time. A response must be presented using Form ET3 and failure to do so will lead to the response being rejected. A response may also be rejected if it does not contain the respondent’s full name and address, if it does not say whether the respondent wishes to defend any part of the claim, or if it is received outside the time limit.
If more time is required, the respondent must make an application to the Tribunal, setting out why an extension is necessary, along with a draft response or an explanation of why a draft response cannot be provided. The Claimant will have the opportunity to give reasons for an extension to be rejected and an Employment Judge will determine the application.
Failure to respond
If an employer fails to respond to a claim, or does not contest any of the allegations made, an Employment Judge will decide if a determination can be made based on the material available. This may be for all or part of the claim and a judgement will be issued if this is the case. If no determination can be made a hearing will be fixed before a Judge.
An employer who has failed to respond will still be given notice of any Tribunal hearings or decisions. They may also be able to participate in the hearings, but only to the extent that the Judge permits this.
If the employer’s response is accepted, the Employment Judge will consider the documents provided to the Tribunal, including the Claim form and the Response. This may result in the Tribunal producing a case management order, dismissing all or part of the claim, or dismissing all or part of the response. Claims will be dismissed if the Judge is of the view that the Tribunal has no jurisdiction. Both claims and responses may be dismissed if the Judge considers they have no reasonable prospect of success.
If, following initial consideration, the claim is to continue the Judge will make a case management order. This may require the parties to attend mediation, disclose documents or provide schedules of loss. It may also give instructions regarding expert or witness evidence. If necessary a preliminary hearing may be ordered.
Employment Tribunal hearings
Hearings in the Employment Tribunal are similar to those in a court, albeit with fewer formalities. The tribunal will consist of three members- an Employment Judge and two non-legally-qualified members. One of the non-legally-qualified members will have an employer’s background, while the other will have an employee background.
The Tribunal will decide whether the Claimant or Respondent will be heard first. Each party will have the opportunity to question the other’s witnesses after they have given evidence. After the evidence has been heard, the parties will be able to make closing submissions. The Tribunal will then make a decision. This may be given on the day of the hearing, or the Tribunal may require more time. If more time is required, the decision will be sent to the parties in writing.
Costs in the Employment Tribunal
At present, there are no fees payable to lodge a claim with the Employment Tribunal. In general, the Employment Tribunal is also a “no-cost” regime, where each party will bear their own solicitors or barristers fees.
There are exceptions and in certain cases the Tribunal may award costs against a party. This may include when a party has acted unreasonably during the proceedings, where a claim or response have no reasonable prospect of success. The Tribunal may also make an order for costs where a party has breached an order or caused a late postponement of a hearing.
Field Overell LLP have experience dealing with employment matters for both employees and employers. For more information and to discuss your case, contact our offices on 024 7622 9582.
This article is provided for information only and is not intended to constitute legal advice. No reliance should be placed on this article. You should always take legal advice from a qualified lawyer before deciding whether to pursue legal action.