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Making an Employment Tribunal Claim

Almost all legal cases about employment are dealt with by an employment tribunal. It decides upon employment disputes between employees and their employers surrounding issues such as unfair dismissal, redundancy, and discrimination. But there are also many other types of employment claim they can deal with.

If you have an unresolved issue at work and are considering making a claim to an employment tribunal, there are certain procedural matters, you will need to do before making the claim. Whether you can make a claim largely depends on what your problem relates to, and whether you meet certain criteria, such as time limits (you have three months less one day from the date of the event to make a claim).

 

Early Conciliation

In most cases, you must use the ACAS (Advisory, Conciliation and Arbitration Service) to start ea before you can make a claim to an employment tribunal. This is a free service which aims to help both sides resolve the issues without having to go to a tribunal. It is important to note that ACAS is independent of the tribunal service and anything you discuss during conciliation will not be passed on to it. The benefits of early conciliation include:

  • It is free
  • It is confidential
  • It is quicker than going to a tribunal
  • It is easier – there is usually a large quantity of paperwork to prepare for a tribunal
  • It is voluntary – either party can refuse the talks
  • You can agree outcomes – including things you cannot get from an employment tribunal such as a job reference
  • Talks generally take place over the phone and can take up to 6 weeks

 

What if I don’t want to attend ACAS or it fails?

You must still notify ACAS of your intention to make a claim, however attendance is voluntary, and neither party is obligated to attend early conciliation. If this is the case, or if conciliation has failed, then you have to decide if you want to make a claim.

It is recommended to take legal advice to assess the merits of your case and whether you have a claim against your employer.

 

Time Limit

You must make a claim to an employment tribunal within 3 months less 1 day from the date of the employment ending. This is called the “limitation date”. Once ACAS receives early conciliation notification, the limitation date is extended to allow enough time for the conciliation to take place.

If the claim is about redundancy or equal pay, then the limitation period is extended to six months. It is your responsibility to ensure your claim is made to the employment tribunal in time, a conciliator cannot decide or advise you on this point.

 

Making a Claim

You can make a claim either online at the gov.uk website or via post. There is a different way to claim for people who live in Northern Ireland, and a talk-through service for those who are unable to use a computer without assistance.

 

Postal Claims

You can download a claim form from the gov.uk website to complete. There are different addresses depending on whether you were working in England and Wales, or Scotland, which are also detailed on the forms and the website.

 

Talk-through Service

Before contacting this service, you will need to make sure you have the ACAS early conciliation certificate number or a valid reason for not having one, and the claim details including the background, dates, and people involved.

There is no fee to make an employment tribunal claim.

 

After making a claim

The respondent (your employer) will usually have to reply to your claim in writing within 28 days of receiving it, giving their side of the case. Once the employment tribunal receives their response, it will decide whether there should be a full hearing to determine the case.

If the respondent fails to reply, the employment tribunal may decide the case without you having to attend a hearing.

You do not need to have a qualified solicitor representing you at any of the hearings. Others, such as union officials, advice centre workers, a family member, or friend can help you prepare and present your case at the hearing, but it is generally advisable to seek professional support from a qualified and experienced legal practitioner to give you the bets chance of success.

 

Preliminary Hearing

The employment tribunal may decide to hold an initial hearing, called a “preliminary hearing”, to decide on things including:

  • If all or part of your claim can go ahead
  • Whether any further evidence (such as statements) are needed
  • The date and time of a full hearing
  • The duration of the full hearing

 

Preparing your case

You can ask your former employer for any documents in their possession that will help with your case, and in return they can also request documents from you. Examples include things like:

  • Your contract of employment
  • Pay slips
  • Pension scheme details
  • Notes from any relevant meetings you attended at work

 

In most cases, the employment tribunal will set out a timetable for when documents should be exchanged.

 

Witnesses

If there are any witnesses who can give evidence directly relevant to your case, then you can bring them to the hearing. If a witness does not wish to attend, you can ask the employment tribunal to order them to come to the hearing. This must be done in writing to the tribunal dealing with your case including the following information:

  • The witness’s name and address
  • Detail the information you want the witness to give and how it will help your case
  • The reason the witness has refused to attend (if you know it)

 

In any case, where the witness incurs expenses, such as travel costs, you will most likely be responsible for paying them out of your own pocket, although you can recoup these if you win your case.

 

Attending the Hearing

Typically, hearings are held at the employment tribunal office nearest to where you worked. You should take the documents you are using to support your case with you and are allowed to take a colleague or someone else who can support you at the hearing if you want. You cannot make a claim for expenses for attending the hearing for yourself.

At the hearing, you (or your representative) will present your case to the tribunal, although someone else can do this on your behalf, such as a legal representative, friend, or family member. The respondent will also get their chance to present their case against you.

You will normally give your evidence first unless your case is about unfair dismissal, and you can be asked questions by:

  • The respondent (or their representative)
  • The judge
  • Two other tribunal members (in certain cases)

 

The decision of the employment tribunal will be sent to you in the post a few days or weeks after the hearing has taken place and will also be published on the gov.uk website. In certain cases, the decision may be given at the end of the hearing.

If you win, the employment tribunal can order the losing party to do certain things, although this depends on the type of case. Examples include:

  • Paying compensation
  • Paying any witness expenses you’ve paid
  • Improve your working conditions
  • Giving your job back

 

Compensation payments usually depend on the type of case – there are limits on certain cases, how much money you have lost because of your former employer’s actions, as well your age, length of service and salary.

If your employer does not pay, you should initially contact them to find out why, and if they still do not pay, you can request them to be fined and named online by the government by completing their electronic penalty enforcement form. You can also apply to the court to force them to pay by using the Fast-Track scheme to send a High Court Enforcement Officer to demand payment from the respondent – this costs £66, which you can recoup from the respondent when they pay you.

Although it is important to note that you cannot do any of these things if the respondent has appealed the decision or is in the process of doing so. The respondent has 42 days to appeal.

If you lose your case, you may be able to appeal by asking the employment tribunal to reconsider the decision. This is done in writing to the tribunal office within 14 days of receiving the decision, setting out in detail the reasons you want the decision reconsidered. You are required to give strong reasons for reconsideration, such as:

  • The employment tribunal made a mistake in the way it reached the decision
  • You were unaware a hearing was taking place, or were not present at the hearing for another reason
  • You have found new evidence not considered at the original hearing

 

You can also appeal to the Employment Appeal Tribunal if you think the employment tribunal made a technical, legal mistake in your case.

Appealing to the Employment Appeal Tribunal (EAT)

If you think a legal mistake was made in the employment tribunal case, you can appeal it if:

  • It got the law wrong
  • It did not apply the correct law
  • It failed to follow the correct procedures, and this affected their decision
  • It had no evidence to support its decision
  • Was unfairly biased towards the other party

 

Your appeal must be lodged within 42 days of the date of either the decision being sent to you or the reasons were sent to you but did not do so within 14 days.

The appeal must arrive by 4pm on the final day to be able to be considered, as extensions are rarely given. It can be made either by email (sending any additional documents as attachments, providing it is 10MB or less), or by posting it to the EAT in London (cases in Scotland must send their documents to an address in Edinburgh).

After sending your appeal, the EAT will decide if your case can go ahead and may ask you to attend a hearing to present your case. If it does not allow the appeal, you will be informed in a letter giving details of the refusal and whether you can appeal further.

The appeal process largely mirrors that of the employment tribunal in terms of what happens at the hearing and following it. If you lose your case, you may be able to appeal to a higher court if you think there was a legal problem with the EAT’s decision. However, you must ask the EAT for permission to appeal their decision on the day of the hearing (if you receive their decision then) or within 7 days of receiving the decision. You must provide grounds for appeal and details of the legal problem. If you are refused permission, you can ask the higher court directly.

 

Employment tribunal FAQs

What does an employment tribunal do?

An employment tribunal hears claims from those who think an employer or potential employer has treated them unlawfully. Examples of cases they hear include unfair dismissal, discrimination, or unfair deductions from pay.

What claims can be brought in the employment tribunal?

The main types of claim are: unfair dismissal, wrongful dismissal, redundancy, equal pay, discrimination (racial, disability, religious, and sexual). Although this list is merely indicative of the types of claim that can be brough in an employment tribunal.

Last updated: 1 March 2022

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