General Information

general-info

Outline of Employment Tribunal Procedure

Before commencing a claim, most claimants will have to notify ACAS of a potential claim by using the correct channels and obtain a certificate number. This is known as Early Conciliation and this became mandatory for most Employment Tribunal claims on 6th May 2014.

 

An employee or worker commences a claim by completing an ET1 form and sending this along with particulars of the claim to the relevant employment tribunal. Unless the employee or worker qualifies for a remission, he or she will have to pay a Tribunal fee to issue the claim. There is also a hearing fee payable closer to the hearing date. The employee is referred to as the Claimant within the legal proceedings. The Tribunal will then process the form and send a copy to the employer who is referred to as the Respondent. The Respondent has to reply to the Tribunal within 28 days from the date that he was sent a copy of the claim.

 

Once the Tribunal receives the Respondent’s response, it will send a copy of it to the Claimant. The Tribunal will then usually issue directions and orders for the parties to comply with before the final hearing date. This will usually include dates for the preparation of a list of documents, disclosure of these documents, preparation of an agreed hearing bundle and 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. An Employment Tribunal may list the case for a Preliminary Hearing to determine whether a claim should be struck out for having no reasonable prospects of success.

 

The final hearing will be heard either by an Employment Judge sitting alone or by an Employment Judge and two lay members. Every witness present for either the Claimant or Respondent will give evidence, usually by way of a witness statement. The other party will then have an opportunity to cross examine the witness and the Tribunal members may also ask the witness questions. After one party’s witnesses have all given evidence, the other party’s witnesses will give evidence and the procedure is repeated. Once all the evidence has been given, each party will have an opportunity to 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 the remedy including any sum of compensation to be awarded to the Claimant.

Legal Costs at an Employment Tribunal

At the Employment Tribunal the general rule is that each party will bear their own costs. However, there are circumstances where an Employment Tribunal must make a costs order and circumstances where a Tribunal may make a costs order. Over the years, the number of successful costs applications has increased. The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1, Rule 76, provides the basis upon which a costs order must or may be made against a party. The circumstances are as follows:

 

  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:
    1. The Claimant has communicated a wish to the Respondent to be reinstated or re-engaged no less than 7 days before the hearing; and
    2. The postponement or adjournment of that hearing has been caused by the Respondent’s failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the Claimant was dismissed, or of comparable or suitable employment.

 

  1. A costs order may be made in the following circumstances:
    1. 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 as a result of the postponement or adjournment.
    2. Against a party who has not complied with an order or practice direction.
    3. If, in bringing or conducting the proceedings, a party (or his or her representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably.
    4. The claim or response has no reasonable prospect of success.
    5. For the recovery of an employment tribunal fee if the claim, counterclaim or application is decided in favour of the party who has paid that fee.

 

A preparation time order is an order of the payment for the sum of money to a party who is not legally represented in respect of the preparation time incurred at a set hourly rate. The hourly rate as at 6th April 2013 is £33 which increases by £1 on 6th April each year. The rules in relation to preparation time orders are almost exactly the same as the rules that apply for costs.

 

A Tribunal or Employment Judge may make an award against a party’s representative for wasted costs pursuant to Rule 80. Wasted costs are defined as costs incurred by a party which:

  1. as a result of any improper, unreasonable or negligent act or omission on the part of any representative; or
  2. which, in light of any act or omission occurring after they were incurred,

 

the tribunal considers it unreasonable to expect that party to pay.

Mitigation of loss

An employee who is claiming (amongst other things) loss of earnings arising from a claim is expected to mitigate their losses. In the context of loss of earnings, this is interpreted as taking reasonable steps to secure suitable alternative employment. The question of whether the employee has taken reasonable steps to mitigate is a question of fact for the tribunal. If the employer wants to argue that the employee has not done so, the burden is on him or her to prove it.  One way of attempting to do this would be by providing evidence of any jobs which the employee could have applied for or carried out.  However, if the employer wants to prove that the employee failed to mitigate his or her losses he must show that the employee acted unreasonably in not taking reasonable steps to secure alternative employment. If a tribunal finds that a employee has unreasonably failed to mitigate his or her loss, compensation may be reduced by a figure which the tribunal considers appropriate.

Settlement

There are two main methods of settling an employment tribunal claim and they are:

  1. By way of compromise agreement or settlement agreement. See our page on compromise or settlement agreements.
  2. Via an Acas conciliation officer.

 

An Acas conciliator is a neutral party. He or she may discuss the issues with both parties with a view to attempting to resolve matters. He or she may also:

  1. Speak about the conciliation process.
  2. Discuss the options open to them and possible resolution of the case.
  3. Explain what the tribunals will take into account when making a decision on the case.
  4. Assist a party to understand how the other side views the case.
  5. Inform a party of any proposals that the opposition has to resolve the matter.

 

A conciliator should not:

  1. Make a judgment on a case, advise on the strengths of a case or provide his or her opinion on the likely outcome of a hearing.
  2. Advise a party whether or not they should accept any offers of settlement or whether any such offers are fair or reasonable.
  3. Act as a representative for any party or take sides.
  4. Help a party prepare their case.

 

If the case is settled via an Acas conciliator, it is concluded by both parties signing a COT3 agreement. However, the agreement becomes legally binding once both parties have agreed settlement wording which is usually before the COT3 has been signed.

As part of a settlement agreement, an employee may want to incorporate a reference so that he or she can be sure that the wording of this reference will be communicated to any prospective or future employer.

Time limits

A claimant must present a claim to an employment tribunal within certain time limits. The time limit for unfair dismissal is three months from (and including) the effective date of termination.

 

Most other (but not all) time limits are 3 months and the date that the time limit runs from will depend on the nature of the claim. This could be one of the following, amongst others:

 

  1. The date of the act to which the complaint relates;
  2. The date of the conduct complained of;
  3. The date of the last act or failure to act;
  4. The date when the failure occurred;
  5. The date when the right should have been permitted;
  6. The effective date of termination;
  7. The date of the last deduction or last payment to the employer.

 

In relation to a claim for unfair dismissal, amongst other claims, a Tribunal may extend time by such further period as the Tribunal considers reasonable if it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of 3 months.

In relation to discrimination claims pursuant to the Equality Act 2010 (amongst other claims), a Tribunal may extend time by such period that it thinks is just and equitable.

Although a Tribunal can extend time, its decision to do so is dependent upon the facts and law applicable to those facts as determined by the Tribunal.

Complaints

We strive to provide an outstanding service and hope that you will never have any cause to complain against our firm. In the unlikely event that you have cause to complain, we will carry out an objective investigation and provide you with a decision as to whether your complaint is upheld, together with reasons. We will endeavour to resolve your complaint as quickly as possible. If you are not satisfied with our decision, you may have the right to escalate your complaint to the Legal Ombudsman Service. Once your complaint has been accepted, an Investigator of the Service may carry out an investigation and prepare a recommendation report which will conclude whether the complaint has been upheld. It the complaint has been upheld, the Investigator will suggest a remedy.  If both parties accept the conclusions of the report, the matter is usually at an end. If either party does not accept the recommendation report, the matter will then usually be referred to an Ombudsman for a formal decision.

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