Employment Tribunal: Claiming Against Your Employer

If you are in dispute with your employer and have exhausted all other resolution options without reaching agreement, you may be considering taking them to an employment tribunal.

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 is about, and whether you meet certain criteria, such as time limits.

ACAS Early Conciliation

In most cases, you must notify the ACAS (Advisory, Conciliation and Arbitration Service) Early Conciliation before you can complete your claim form to start litigation with the 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 use 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 may be helpful to find out how strong your case is, but assessing this yourself can be difficult. If you have access to an advisor or legal representative, they will usually decide if you have any grounds to make the claim and if you meet the necessary criteria by assessing the evidence you have given them.

Should I make a claim to the Employment Tribunal?

Provided you meet the above conditions in attempting resolution, it will be a matter of ascertaining the strength of your case against your employer.

Tribunal claims are difficult to predict, but taking advice from an experienced employment law specialist can help you understand the merits of your claim, taking into account the facts of the case and the evidence you have such as emails, witnesses, text messages, a copy of your employment contract, relevant company policies, a (ideally contemporaneous) diary of events, minutes of any relevant hearings of meetings.

You should also discuss with your solicitor what it is you want to get out the claim, in terms of compensation, or if you are looking to be reinstated in your role or within the organisation.

Consider also that an employment tribunal is a public forum, anyone can attend the hearing, including the press, and details of your claim will be publically available.

Assessing your claim

A legal representative will look at what your employer has to say and at any evidence they provide, cross-referencing it with your side of things. It can take some time to do this so they may not be in an immediate position to weigh up the strength of the case.

When thinking about your case, you should think honestly about the evidence you have to reinforce your arguments, and that which rebuts your employer’s stance. You should also factor in that tribunal decisions can be unpredictable, or there may be evidence you haven’t thought about, so even where cases can appear strong, there is no guarantee it will be successful.

Time limits

In most cases, 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 six months. It is your responsibility to ensure your claim is made to the employment tribunal in time; taking early professional advice will ensure you meet the relevant deadline and if the date has passed, whether you could request for your claim to still be heard.

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.

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.

How much does it cost to make an employment tribunal claim?

There are no tribunal fees to pay when making a claim.

In terms of legal costs, you should discuss with your solicitor at the outset how your own legal fees will be covered, whether you win or lose.

If you do lose, only in exceptional circumstances would you have to pay your employer’s legal costs. This would generally only be an issue if, for example, you had refused a reasonable offer to settle, if you had shown poor conduct during the claims process or if you had from outset very little prospect of success.

After submitting your 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.

Preliminary hearing

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

Building 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:

• 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 an Employment Tribunal 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.

You 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.

Can I settle my claim?

You may receive an offer from your employer to settle the claim before it goes to tribunal.

For the employer, a settlement can help to manage the risks associated with defending tribunal claims. With little certainty as to the amount of compensation that could be awarded if they lose, a settlement can save them the hassle and expense of preparing for and attending the tribunal, and it can also help to manage the risk of adverse publicity, which a public tribunal could attract.

You are not obligated to accept, but if you do reject what the tribunal considers to be a reasonable offer, you may have to pay your employer’s legal costs in the event you lose the claim.

Discuss any offer of settlement with your solicitor against the merits of your claim and potential level of award should you succeed before the tribunal.

If you do accept the offer, a settlement agreement should be drawn up for you and your employer to sign, confirming the terms of the settlement. This would usually include, among other details, the level of payment to be made to you, a confidentiality clause and an agreement that you waive any rights to make a future claim on this issue. Your solicitor should review the document and explain the terms before you sign.

You are able to withdraw from the process but should take legal advice on how to approach this, as timing will be critical. If you leave it too late, you may be liable to pay for your employer’s legal costs.

If you accept an offer to settle, your solicitor would need to advise the tribunal of your decision and to withdraw your case. If the settlement is agreed as part of the ACAS conciliation service, ACAS will inform of the withdrawal.

What happens if I win my case?

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
• Your age, length of service, or salary

What if the employer does not pay?

Initially, you should 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.

What if you lose your case?

If you lose your case, you can ask 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 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
• 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 submitting 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

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Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.