Before you can begin the claim process you must, in most cases, notify the Advisory, Conciliation and Arbitration Service (Acas) to commence a process known as early conciliation. When early conciliation is complete, you will receive a certificate and you can then lodge a claim by completing an ET1 form.
The employee is referred to as the claimant throughout the process. The tribunal will process the application form and copy it to the employer, referred to as the respondent.
The respondent must reply to the tribunal within 28 days from the date they were sent a copy of the claim. Their reply will be sent by the tribunal to the claimant, and they will then usually issue directions and orders for the parties to comply with before the final hearing date. This usually includes:
- dates for the preparation of a list of documents
- disclosure of these documents
- preparation of a schedule of loss (a breakdown and calculation of the compensation claimed)
- preparation of an agreed hearing bundle
- exchange of witness statements
The tribunal may list the case for a preliminary hearing if it considers there are matters of procedure and/or management and/or preliminary issues that should be decided by the tribunal. A preliminary hearing is generally listed as a matter of course for more complex matters such as discrimination or whistleblowing claims. An employment tribunal may also list a case for a preliminary hearing to determine whether a claim should be struck out for having no reasonable chance of success.
The final hearing will be heard either by an employment judge on their own or by an employment judge with two lay members (who are not legally qualified). Every witness for either the claimant or respondent will give evidence, usually via a witness statement. The other party can cross examine the witnesses and tribunal panel can question them. One party’s witnesses will all give their evidence and then the other party’s will all give theirs. Each party can then sum up the evidence and provide legal submissions.
The tribunal will then decide whether the claim has been successful and, if so, will decide on what action will be taken including the amount of any compensation awarded.
Payment of legal costs
The general rule is that each party bears their own costs, however, there are circumstances where an employment tribunal must make or can make a costs order. Over the years, the number of successful cost applications has increased.
1- A tribunal or employment judge must make a costs order against a respondent where, in proceedings of unfair dismissal, a hearing has been postponed or adjourned and:
The claimant has communicated their wish to be reinstated or re-engaged to the respondent no less than seven days before the hearing; and
The postponement or adjournment of that hearing has been caused by the respondent’s failure, without a special reason, to provide reasonable evidence regarding the availability of the job the claimant was dismissed from, or of comparable or suitable employment.
2- A costs order may be made in the following circumstances:
A- Where a party has applied to postpone or adjourn a hearing. A costs order may be made for or against the party making the application to postpone or adjourn in respect of the costs incurred or allowances paid because of the postponement or adjournment.
B- If, in bringing or conducting the proceedings, a party (or their representative) has acted vexatiously, abusively, disruptively, or otherwise unreasonably.
C- Against a party who has not complied with an order or practice direction.
D- The claim or response has no reasonable prospect of success.
E- To pay back an employment tribunal fee if the claim, counterclaim, or application is decided in favour of the party who paid it.
A preparation time order can be made if you did not pay for legal advice and is worked out at a set hourly rate. The hourly rate increases by £1 on the 6th of April each year and in April 2022 became £42 per hour. The rules in relation to preparation time orders are almost exactly the same as those for costs.
A tribunal or employment judge can make an award against a party’s representative for wasted costs. These are defined as costs incurred by a party that:
- Are as a result of any improper, unreasonable, or negligent act or omission on the part of any representative; or
- which, in light of any act or omission occurring after they were incurred,
the tribunal considers it unreasonable to expect that party to pay.
Occasionally, employers or their representatives threaten the claimant with costs in an attempt to deter them from continuing with their claims. Legal advice can help determine whether there is any sound basis for such threats.