Jargon Busting part I – Employment Tribunal Claims and Their Associated Terms
The Employment Tribunal is set up so that an individual Claimant can bring their respective claims against a single respondent or a number of named Respondents.
Whilst judges when dealing with a litigant in person will seek to navigate an individual Claimant through various Employment Tribunal processes, the terminology used can often be confusing to those who have not previously experienced an Employment Tribunal matter.
Below are 10 commonly used terms or claims and what they actually mean:
- Unfair dismissal: To be able to bring an ordinary unfair dismissal claim an individual has to have been an employee with a minimum of 103 continuous weeks’ and their employer has to have dismissed them unfairly. Fair reasons for dismissing an employee, subject to following a correct procedure, include:
- Conduct e.g. unacceptable behaviour.
- Capability e.g. employee is unable to carry out their role or does not have the requisite professional qualifications.
- Redundancy e.g. the job role is no longer required.
- Breach of a statutory restriction e.g. an employee is banned from driving but their role requires them to drive to fulfill their duties; or
- SOSR (see point 2).
- SOSR Some Other Substantial Reason: SOSR (s.98(1)(b) ERA 1996) can often be used in a catch-all situation where the dismissal does not fit neatly into one of the four other fair reasons under the Employment Rights Act 1996 (ERA 1996) set out above at point 1.
Unhelpfully there is no express definition for SOSR contained within the ERA 1996. Guiding authorities confirm that the reason must be ‘substantial’ in that as long as the reason for dismissal is not ‘frivolous or insignificant’ this will amount to ‘substantial’ albeit such interpretation is somewhat subjective.
- POLKEY: A Polkey deduction is a deduction made in unfair dismissal cases from a Claimant’s compensatory award in circumstances, where a dismissal may have been procedurally unfair, the Respondent would have dismissed the Claimant in any event. The Polkey deduction is often referred to as the “No difference rule”. An Employment Tribunal judge can reduce a compensatory award by as much as 100% under a Polkey deduction in the right circumstances.
- Automatically unfair dismissal: There are a number of reasons whereby dismissals are classed as automatically unfair and therefore a potential Claimant does not need the usual requisite two years’ service to bring such a claim. Such protection is afforded as a day one right and there are approximately 60 different automatically unfair dismissal grounds. Some of the most common ones include dismissing an employee who refused to work in unsafe working conditions or who raised genuine whistleblowing concerns in the public interest.
- Constructive unfair dismissal: An employee can resign in response to a fundamental breach, typically this is cited as a breach of the implied term of trust and confidence. Such a claim is capped and therefore subject to the current maximum compensatory award: £93,878 or 52 weeks’ pay – whichever of the two figures is the lower.
- Wrongful dismissal: A wrongful dismissal is a breach of contract and unlike ordinary unfair dismissal claims there is no length of service requirements for a breach of contract claim. The choice of forum for a wrongful dismissal claim is dictated by the value of the Claimant’s claim. £25,000 is the ceiling for a breach of contract claim in the Employment Tribunal so in circumstances where an employee for example has been dismissed summarily (i.e. without notice) and they have a notice period worth in excess of £25,000 then such a claim would have to be brought in the county court or high court.
- Without Prejudice: The following are required for a discussion to qualify under the ‘without prejudice’ rule:
- an existing dispute between the parties, (e.g. threat of a claim by the employee);
- a genuine attempt to settle that dispute;
- an agreement to treat the discussions as without prejudice; and
- no ‘unambiguous impropriety’ in the conduct of the parties during the settlement discussion.
If there is no existing dispute then the ‘without prejudice’ rule does not apply and any ‘off the record’ chat (even if the employee agrees to having one) would not be protected and therefore becomes admissible in tribunal proceedings.
- ACAS Early conciliation: ACAS is an impartial form of mediation and ACAS early conciliation (as explained on ACAS’ website):
ACAS early conciliation is a window of up to six weeks for employees and employers to seek to agree a financial settlement prior to a prospective Claimant lodging their claims at an Employment Tribunal.
Typically, it is the employee who commences ACAS early conciliation. An employee seeking to commence ACAS early conciliation would submit an online form which captures information about the parties who would be involved in an Employment Tribunal claim.
An employer can start ACAS early conciliation in circumstances where the parties are in dispute but usually at the stage before parties have agreed terms. There is no online form an employer can fill in rather they need to call ACAS directly on 0300 123 1122 to commence the process.
- COT3: A “cot three” (COT3) as it is pronounced is the equivalent of a settlement agreement entered into via Acas to settle actual or potential claims in the Employment Tribunal. For a settlement agreement to be signed off an individual would need to receive independent legal advice, the same is not true of a COT3 agreement. A COT3 typically provides for compensation without admission of liability and includes clauses such as mutual confidentiality, non-derogatory terms and a reference for the Claimant. Once a COT3 is legally binding one of the terms will be for the Claimant to withdraw their respective claims.
- ET1 and ET3: An ET1 is completed by a potential Claimant seeking to bring their Employment Tribunal claims and is commonly accompanied by a separate grounds of claim document. In response a Respondent will, within 28 days of receipt of the ET1, submit to the Employment Tribunal an ET3 and their grounds of resistance in response to the claims brought.
• Please note – this guidance is not intended to be taken as legal advice – for individual situations you will need to take specific legal advice.
• The information in this guide is correct as of July 2022 and should be read alongside the government’s specific guidance.
Director, Employment Solicitor and Mediator
Direct Dial 0113 8874670
Reception: 0113 3229222
Address: 4 Park Place, Leeds LS1 2RU
Direct Dial: 01138874673
Direct Dial: 0113 323 0346
Mobile: 07595 520 508