If you are considering submitting an Employment Tribunal claim against your employer or you are an employer who has had an Employment Tribunal claim submitted against them, you should seek out specialist employment law advice as early as possible. Broadly, the things to be aware of are:
- ACAS Early Conciliation;
- Time limits for bringing an Employment Tribunal claim;
- How to submit an Employment Tribunal claim;
- How to respond to an Employment Tribunal claim;
- The conduct and format of Employment Tribunal hearings;
- Witnesses;
- Preliminary hearings; and
- The final hearing.
ACAS Early Conciliation
Before submitting an Employment Tribunal claim, you must first attempt early conciliation using the Advisory, Conciliation and Arbitration Service (ACAS). Once you have notified ACAS that you intend to go to the Employment Tribunal, they will appoint a dedicated conciliator who will discuss your case with you and the company you want to claim against.
The conciliator will then facilitate discussions between yourself and the company to try and encourage both of you to reach an agreement and avoid the need to go to an Employment Tribunal hearing.
If an agreement can’t be reached, or if one party does not wish to enter into discussions, your ACAS conciliator will then provide you with an ACAS Early Conciliation certificate. You will need the reference number from this certificate in order to lodge your claim with the Employment Tribunal.
Time Limits for bringing an Employment Tribunal claim
Time limits for bringing an Employment Tribunal claim are three months from the date of the act or omission which the claim relates to. It is important to state that the date of that act or omission is the first day of the three-month period and so you should calculate the deadline at three months’ less one day. For example, if the act or omission occurred on 1 January, three months’ less one day after that would be 31 March.
Any time that is spent in ACAS Early Conciliation stops the clock running on your time limit for the period of time spent in conciliation. It ensures that anyone who wants to bring an Employment Tribunal claim has at least one month between the end of early conciliation and the deadline to submit their claim.
The Employment Tribunal will be very strict when it comes to enforcing the time limits for an Employment Tribunal claim, however there are some very limited circumstances in which the Tribunal may consider extending the deadline. Extensions are however the exception not the norm. In claims such as unfair dismissal, an individual will need to persuade the Tribunal that it was ‘not reasonably practicable’ to present the claim in time and that the additional time it took them to submit the claim was reasonable. For claims such as discrimination under the Equality Act 2010, the Tribunal will look at whether it would be ‘just and equitable’ for them to hear the claim.
How to submit an Employment Tribunal claim
Employment Tribunal claims must be set out in an ET1 claim form and provide certain pieces of information such as the names and addresses of the parties and your ACAS early conciliation number from your certificate.
The Employment Tribunal has begun the process of moving online using the MyHMCTS Portal. This allows individuals to submit single Employment Tribunal claims online, although multiple claims are not possible using the Portal. The system is not live in all areas of the country just yet and at the date of writing, claims can be submitted via the Portal for Employment Tribunal centres in Bristol, Glasgow, Leeds, Manchester, Midlands East, Midlands West, Newcastle, Nottingham, Wales, Watford and other sites in London. Claimants can insert their postcode into the online service to see whether the service is available to them.
How to respond to an Employment Tribunal claim
If you are a business that has had an Employment Tribunal claim submitted against them, you will receive a response pack from the Tribunal in order to respond to an Employment Tribunal claim. Specialist employment law advice should be sought for your business as soon as you receive the response pack as you will have just 28 days to respond to the claim.
Your Employment Tribunal response must be set out in an ET3 response form and provide the full company name, address and whether you wish to resist any part of the claim. The response form should also set out your grounds of resistance.
The conduct and format of Employment Tribunal hearings
Employment Tribunal hearings are either heard by an employment judge sitting alone or an employment judge sitting with two lay members. Hearings are held in Tribunal offices or hearing centres and are usually slightly less formal than other Courtroom settings. Hearings may also be conducted remotely over the phone or videoconferencing.
The Employment Tribunal will likely have set out a timetable to be followed during the hearing in relation to how long each party can take to present their evidence and question witnesses to ensure that the hearing does not run over its allotted time.
All final hearings and some preliminary hearings are generally public hearings which means anyone can attend and observe in the public gallery. In certain circumstances, the Tribunal may introduce measures such as holding some of the hearing in private, keeping the identity of a party or witness secret, or restricting the reporting of the case. Such measures would normally be enforced in the interests of justice, to protect an individual’s human rights, or for reasons of national security and confidentiality.
Witnesses
Each party will usually select the witnesses they wish to call to support their case and witness statements will be prepared and exchanged. The statements will then be read by the Tribunal and will be taken as the witness’ evidence-in-chief. They will be cross-examined on their statement by the opposing party’s lawyers. A Tribunal does have the power to make a ‘witness order’ which requires an individual to give evidence, produce documents or produce information where it is deemed necessary.
If either party wishes to call evidence from an expert witness, they should apply to the Tribunal for permission. The Tribunal is not obliged to hear expert evidence and may order the instruction of a single joint expert in the interests of time and costs.
Preliminary Hearings
Before an Employment Tribunal case gets to a final hearing, there will be on or more preliminary hearings which are usually heard by an employment judge sitting alone. The first preliminary hearing is usually dedicated to case management and the Tribunal will set a timetable for directions to be followed between the preliminary and final hearing. Examples of case management directions include agreeing a list of issues, setting dates for disclosure, preparation of a hearing bundle, serving a schedule of loss and the exchange of witness statements. The Tribunal will also list the case for a final hearing.
Further preliminary hearings may be required, for example to decide whether the claim should be struck out, to determine a preliminary issue such as whether a claimant was a disabled person at the relevant time in a claim alleging disability discrimination, or to decide an application made for specific disclosure or to amend a claim.
The Final Hearing
At the final hearing, witness evidence is heard including oral evidence and cross-examination, and submissions are made to the Tribunal by the parties’ lawyers. It is effectively a trial. The Tribunal will then retire to decide whether the claims have been successful and what, if any, compensation or other order should be made. The judgment may be announced at the final hearing if there is time or reserved and sent to the parties in writing.
If you need any help with an Employment Tribunal claim
Whether you are looking for an Employment Tribunal solicitor to help you bring your claim or defend a claim, Consilia Legal has a team of specialist employment law solicitors in Leeds, Harrogate and London.
You can contact us for a free 30-minute consultation to discuss your matter confidentially with one of our employment law specialists who can chat you through the process as well as your funding options when appointing an employment lawyer to represent you.
Please email enquiries@consilialegal.co.uk or call 0113 322 9222.