If a workplace dispute cannot be resolved on mutually agreeable terms with an existing or former employee, you may find yourself defending a claim in the employment tribunal. This could be, for example, a claim for unlawful deduction of wages, unfair dismissal or even unlawful discrimination. As an employer, by understanding how the tribunal process works, this will help you to make an informed decision about whether to seek to settle any dispute and, where the matter cannot be resolved on an agreed basis, how best to defend the claim.
The following guide for employers examines the employment tribunal rules and procedure, from how proceedings are commenced to what orders the tribunal can make.
What are the employment tribunal rules?
The rules that govern procedure within the employment tribunal, and deal with the powers and discretion of tribunal judges to manage and hear proceedings, can be found under Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237).
Guidance on the rules as to how cases are handled in employment tribunals, from starting a claim to what happens at a hearing, covers various matters including starting and responding to a claim, case management orders, hearings and the tribunal’s decision.
An employment tribunal ‘road map’ was published for 2021-2022, providing an update on the rules and procedure in response to the impact of the COVID-19 pandemic following a steep increase in the tribunal’s outstanding caseload and waiting times for hearings. This roadmap focuses on the future of in-person, video and hybrid hearings, and should be taken into account when reading the guidance below.
How are tribunal proceedings commenced?
A claim is commenced in the employment tribunal, either online or by post, by a claimant issuing an ET1. This is the claim form. As the defendant, you will then be required to complete an ET3. This is your response or defence to the claim. Where a claim is issued against you, the tribunal will send you a ‘response pack’. You will usually have a period of 28 days from the date you were sent the response pack to reply to the claim.
A response to a claim can be made either online or by filling out and returning the response pack you’re sent. You can also download and complete a response form and send it to the tribunal office dealing with the case. You must return your completed response form to reach the office by the date on the letter sent with the claim form. It’s your responsibility to ensure that the tribunal office receives your response within the relevant time limit.
If you’re late or fail to respond, the tribunal may make a decision automatically in the claimant’s favour. This is called default judgment. If it’s not possible for you to complete the form in time, you may be able to ask the tribunal to extend the time limit, although you must ask for an extension in writing as soon as possible, together with reasons why. If you fail to seek an extension within the 28 day time limit, the claim is likely to be treated by the tribunal as one to which no defence has been submitted and judgment may be made against you.
What is early conciliation?
When someone wants to bring a claim before an employment tribunal, they must first go through the mandatory ACAS Early Conciliation (EC) procedure and obtain an EC certificate confirming that they have done so. This means that prior to a claimant lodging their claim, ACAS may notify you of the possibility of proceedings. ACAS will then offer to work together with both parties to try to resolve the dispute without the need for legal action.
Although the parties are not required to participate in early conciliation, if you do decide to engage in this process the conciliation period is set at 6 weeks. This timeframe was recently extended from 4 weeks to allow more flexibility and to ease the burden on the backlog of tribunal cases arising out of the COVID-19 pandemic. The effect of this timeframe is essentially to “stop the clock” on the period within which the claimant must bring a claim, so as to give you both an opportunity to explore the possibility of settlement.
Using early conciliation can be a quick and cost-effective way of resolving an employment dispute without the need for any hearing(s). It can also help you to preserve a positive employer-employee relationship where the claimant continues to work for you. If you are able to reach an agreement, ACAS will write up what you agree in a settlement form called a ‘COT3′. This is legally binding and will prevent the claimant from pursuing any further claim.
You can also try to settle the case at any stage throughout the dispute process, either before or after a claim is commenced, by offering to pay compensation to the claimant. This is known as a settlement agreement, although this must be carefully drafted so that you’re adequately protected from any future claim or comeback.
What happens at a preliminary hearing?
A preliminary hearing will not take place in every tribunal claim. An employment tribunal judge will decide whether a claim requires a preliminary hearing having looked at the matters set out in the ET1 and ET3. In many cases the tribunal will issue standard directions, with time limits for compliance, contained within what’s known as a case management order.
In contrast, for complex claims, especially those including allegations of unlawful discrimination, a preliminary hearing will usually be deemed necessary prior to listing any final hearing. If a preliminary hearing is scheduled, you should be notified by the tribunal in writing of the date for this hearing, together with an explanation of what will be discussed.
A preliminary hearing will be used by the tribunal to identify and narrow the issues in the case, and to set appropriate case management directions to help the parties prepare for the final hearing. Typically, the issues that will be determined at a preliminary hearing include:
- The date and time of the final hearing
- The estimated length of that hearing
- Any witnesses to be called and documents to be disclosed
- A timetable for exchange of statements and documentation.
This type of hearing can also be used for the tribunal to determine specific issues in the case, for example, whether the claimant is disabled in the context of a discrimination claim, or whether elements of the claim should be struck out. Otherwise, the tribunal will not consider the merits or overall outcome of the claim at this stage, although it’s not uncommon for an indication to be given as to how parts of the claim may be viewed at a final hearing.
Where the preliminary hearing is simply to set case management directions and a timetable for the final hearing, this will often be listed by telephone where you can instruct a solicitor or barrister to conduct this hearing on your behalf. If the hearing is listed in person, typically where the claimant is acting without a lawyer, you can again ask your legal representative to conduct this hearing without the need for anyone from your business to attend. In most cases, following the aftermath of the pandemic, this is likely to be conducted remotely.
In more complex cases, where witness evidence is required on a preliminary issue to be determined at the hearing, it’s often advisable for any witness(es) to attend with someone from your business with the authority to make decisions about the conduct of your defence and to provide instructions to your legal representative. Again, however, this is more likely to be by way of a video hearing for the foreseeable future.
Where decisions are likely to be made at a preliminary hearing that could affect your ability to defend the allegations made against you, and the matter is listed in person, it’s often useful to attend. By seeing how the tribunal process works in practice, this can help you to prepare for the final hearing. It may also provide you with the opportunity to enter into ‘without prejudice’ discussions with the claimant outside of the hearing.
Any opportunity to enter into face-to-face discussions or negotiations can help the parties to progress their case or find a sensible basis for settlement without the need for a final hearing. The tribunal may also want to explore the possibility of judicial mediation to bring the claim to an early conclusion. This involves bringing the parties in the employment dispute together for mediation at a private preliminary hearing before a trained employment judge.
What happens at a final tribunal hearing?
Following the preliminary hearing, the parties will need to comply with any directions set out in the case management order in preparation for a final hearing. This will usually involve disclosing documents and exchanging witness statements in accordance with a scheduled timetable. If the claim cannot be resolved in the interim, the matter will then proceed to a final hearing for determination by the tribunal.
To prepare for a final hearing you will need to consider the issues involved and decide what evidence you will need, both written and oral, in support of your case. Where you have legal representation, advice can be given as to what evidence is needed, although the tribunal will limit disclosure of documentation and witness statements relevant to the issues in the case.
Witnesses will usually be required to attend a final hearing, either remotely or in-person, save except where their evidence is to be given in writing. If a witness is reluctant to give oral evidence, an order should be sought at the case management stage for them to attend.
Final hearings are usually held at the employment tribunal office closest to where the claimant works (or worked). Even if you have a solicitor or barrister conducting the case on your behalf, you should again have someone from your business attend with the authority to make decisions about the conduct of your defence and to provide instructions to your legal representative. Depending on the complexity of the case, a final hearing can last for anything between half a day and several weeks, although 1-3 days is the standard estimate.
At the hearing, the claimant and any witnesses in support of the claim will normally give their evidence first, unless the case is about unfair dismissal. An opportunity will be given for you or your representative to ask questions of the claimant and any witnesses. Oral evidence will then be heard from your own witnesses, who again may be subject to questions from the claimant, if acting in person, or their own legal representative. The tribunal judge or panel may also ask questions of anyone giving evidence in the case.
Having heard all the evidence, the tribunal will listen to final arguments from both sides before reaching a decision. The tribunal will go on to consider in detail the written and oral evidence adduced, together with any submissions, before providing its decision. The parties will either be informed of the tribunal’s decision on the day, or this will be sent via post a few days or even several weeks after the hearing. The decision will also be published on GOV.UK.
What orders can the tribunal make?
Where a decision is made in the claimant’s favour, you may be required to pay compensation or reinstate that individual where they’ve been dismissed. The tribunal may also order you to pay the claimant’s expenses and to pay back any state benefits that the claimant has received in the interim. If complex, the issue of remedies may often be adjourned to another hearing.
If you are successful in defending the claim, you will not usually be awarded any compensation, although you can ask the tribunal to award you costs if the claimant has acted unreasonably or if their claim had no reasonable prospects of success.
Either party may ask the tribunal to reconsider its decision, although this must be done in writing within 14 days of the judgment being handed down. The disputing party will also need to provide a good reason for their request, for example, that a mistake was made by the tribunal in the way it reached its decision or there’s new evidence. An appeal can also be made to the Employment Appeal Tribunal if any party thinks the tribunal made a legal mistake.
DavidsonMorris are UK employment law specialists. Our lawyers are on hand to provide expert advice to employers facing legal disputes in the workplace, with guidance on early resolution options through to employment tribunal representation. Early advice is generally recommended to allow all options to be explored to resolve disputes before they are litigated, but if a claim is made against you, we can advise on the employment tribunal rules and the process you will need to follow to comply with your obligations. For advice on a dispute or tribunal matter, contact us.
Employment tribunal rules & procedures FAQs
What evidence can be used in an employment tribunal?
Evidence in an employment tribunal can be either oral or written, although it must be directly relevant to the issues in the case. This can include things like the employment contract, payslips or witness evidence about what’s allegedly happened.
What is Rule 21 in employment tribunal?
Rule 21 of the employment tribunal rules means a judge can consider whether, on the available evidence, they can reach a conclusion on all or part of the claim, typically where a response to the claim has not been received.
What is the time limit for employment tribunal?
A tribunal claim must usually be made within 3 months less 1 day. For example, for an unfair dismissal, a claim must be issued within 3 months less 1 day from when the claimant’s employment contract came to an end.
What regulation governs the employment tribunal?
The rules that govern tribunal procedure, and set out the powers and discretion of employment judges to manage and hear proceedings, are contained within Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.
Last updated: 30 June 2021