AA Legal Documents
Law guide

Employment tribunals

Contents

An Employment Tribunal deals with legal disputes to do with work - if you make a claim, there are procedures that need to be followed and you should understand what happens when your claim is heard.

What is an Employment Tribunal?

ETs hear cases involving employment disputes. They're less formal than some other courts, but you give evidence on oath, and if you lie you can be convicted of perjury.

The majority of cases are usually heard by a panel of three people – a legally qualified employment judge, and two 'lay members'. The lay members use their employment experience in judging the facts. However, for certain claims, such as for unfair dismissal, the employment judge sits on their own.

Do you need to go to an Employment Tribunal?

It's always best to try to sort out problems through discussion, and before you go to a tribunal, you should get specialist advice, particularly about your chance of success. You must:

  • Follow your employer's grievance and disciplinary procedures (in most cases, a tribunal won't hear your claim unless you've tried putting in a grievance first)
  • Check that your claim can be heard by the tribunal
  • Make sure you are within the time limits
Starting the process

Acas Early Conciliation

Before starting a claim in an Employment Tribunal, the Advisory, Conciliation and Arbitration Service (Acas) will offer you the use of their 'Early Conciliation' service. This is a free dispute resolution service that will be voluntary until 5 May 2014. After this date, if you want to start an ET claim, you must first send Acas certain 'prescribed information' about your dispute. You can use a form to do this, which is available from Acas.

Acas will then contact you to confirm whether you want to use the scheme to try to resolve the dispute. If so, Acas will have a month to try to resolve it. In the meantime, the time limits for starting an Employment Tribunal claim (see below) will be 'frozen'.

If a settlement cannot be reached, Acas will give you an Early Conciliation certificate.

This certificate will show that Acas believes a settlement will not be possible. Acas will also give you this certificate if either you or your employer refuses Early Conciliation, or if either of you cannot be contacted.

You will need this certificate in order to start a claim at an Employment Tribunal.

When to use the Early Conciliation scheme

Acas will offer the Early Conciliation scheme for most types of claims, such as those involving unfair dismissal, discrimination, redundancy payments, deduction of wages and unpaid holiday pay.

The scheme will not apply to a small number of claims, such as where there is little time left to make a claim, making it impractical. Further, the scheme will not apply if you have already referred the dispute to Acas, or if the dispute involves multiple claims.

Your employer can also request Early Conciliation. They will need to contact Acas and give your details using a request form from the Acas website.

If they do this then the time limit for making a claim will not be frozen and there will be no time limit for Early Conciliation to end.

See the Acas website for more information on the scheme.

The required form

You must first complete a form ET1, which you can get from:

  • Jobcentre Plus
  • Acas
  • Your local Citizen's Advice Bureau (CAB)
  • An employment tribunal office
  • The employment tribunal service's website
You should seek legal advice, such as from a CAB, when you complete the form.

Use the form to give information about yourself, your employer and your complaint, and confirm that you've followed your employer's grievance procedures when necessary. If you're complaining of unfair dismissal, you don't have to have used the grievance procedures, but your employer should have used the disciplinary procedures.

Send the form to the Employment Tribunal's central office. They'll send a copy to your employer, who has to respond within 28 days.

Employment Tribunal fees

In July 2013, the government introduced fees for making claims at an Employment Tribunal. An employee must pay an issue fee (payable when starting a claim) and a hearing fee (payable 4-6 weeks before the final hearing).

The fee amount will depend on the type of claim:

  • Type A - low value and straightforward claims usually involving money owed after dismissal, such as unpaid wages and redundancy payment issues.
  • Type B - all other, more complex claims, such as unfair dismissal, discrimination and equal pay.
Fees for claimants

The table below shows the fees payable for type A and type B claims. If there is more than one claimant, the fees can be split between them.

Number of claimantsTypeIssue feeHearing fee

1

A

£160

£230

2-10

A

£320

£460

11-200

A

£640

£920

1

B

£250

£950

2-10

B

£500

£1,900

11-200

B

£1,000

£3,800

Application fees

Fees for certain applications will also apply:

  • To request mediation: £600*
  • To counter-claim for breach of contract: £160*
  • To dismiss a claim if it has been settled or withdrawn: £60
  • To review the Employment Tribunal's decision: £100 for Type A claims, and £350 for Type B claims
  • To set aside a default judgment (when the employer has failed to submit a defence in time): £100
*These costs apply to employers only.

Payment

In some circumstances, Employment Tribunals may order the unsuccessful party to pay for any fees that the winner may have incurred.

Employees who cannot afford to pay the fees (such as those on certain government benefits) can apply so that they do not have to pay.

Time limits

Most applications must be made within 3 months of the incident, but this can vary. Tribunals will only extend the time limit in exceptional circumstances.

Will your claim go ahead?

Once an Employment Tribunal receives the claim and response, an employment judge will initially review them. The judge will then decide whether the claim or response (or any part of them) should be 'struck out', or deleted, so that the affected party cannot rely on it. The judge will do so if a claim or response is unlikely to succeed, or if it falls outside the tribunal's jurisdiction.

If the employment judge decides that the case should continue, the tribunal will send the parties instructions for preparing the case for a trial (case management directions).

The tribunal can then decide that your claim is not likely to succeed and order a hearing to look at the issues. If they think you are unlikely to succeed, they can make you pay a deposit of up to £1,000, which you won't get back if you lose.

If the case proceeds, 'case management discussions' can be held to clarify any issues. The tribunal can also ask for further information from you or your employer if they're unclear about the claim.

Settling the issue before a hearing

Try to settle your claim before going to the Employment Tribunal because you're not guaranteed of winning. You can usually withdraw your complaint at any time before the hearing. Acas will offer free and impartial conciliation to you and your employer.

The tribunal hearing

The tribunal will inform you of the date of your hearing.

You don't have to appear in person, but you must tell the tribunal if you want the case to be heard in your absence.

When preparing for the hearing, ensure that you have all the documentation that you intend to use. It usually helps to consider things in date order to provide a sequence of events. If you're going to use any documents, you'll need to tell the other side, giving them at least 7 days' notice before the hearing.

At the hearing you (or your representatives) and your employer put your cases to the panel and answer questions. The panel or employment judge then comes to a decision.

You can take witnesses to the hearing who can give evidence to support your case. If any witnesses you would like to be there refuse to go, you can ask the tribunal to order their attendance.

You can represent yourself, and the panel will try to make things clear for you. The procedures are quite informal. There's no legal aid, but if you're a member of a trade union, they may pay for a solicitor.

Awards & Costs

Some household insurers pay reasonable legal costs - check your policy documents.

Unlike other courts, tribunals don't usually order either side to pay costs, except in exceptional circumstances.

Tribunals also have the power to order the unsuccessful party to pay for any fees that the winning party may have incurred.

If you represent yourself in a tribunal then you can claim from your employer a fixed hourly rate for the time it took to prepare. You can also claim the costs incurred for paying any witnesses' expenses. However, you must apply for such an order before you can claim these costs.

If you win

The tribunal can order your employer to pay you compensation. There is no limit to the amount of compensation paid in discrimination claims, or in dismissal claims based on health and safety grounds.

The tribunal can order your employer to pay compensation, which is unlimited for discrimination or dismissal related to six specified grounds related to health and safety.

For unfair dismissal claims, the award is made up of:

  • The basic award, based on your salary (subject to a maximum weekly limit), age and length of service
  • A compensatory award, which has a maximum limit of £74,200 if your effective date of termination was on or before 29 July 2013, or, if it is after this date, one year's gross pay or £ 76,574 (whichever is lowest), for dismissals on or after 6 April 2014.
Pension contributions, benefits-in-kind and discretionary bonuses will be excluded when calculating your gross annual salary.

Note that not all unfair dismissal claims are subject to this limit, such as whistleblowing claims.

Compensation is intended to replace lost earnings - there's no payment for hurt feelings (apart from in discrimination cases). You have to try to reduce your loss (e.g. by getting another job or claiming benefit).

The tribunal can order your employer to give you your job back if you win a dismissal case, if you want it.

Reimbursing any fees you paid

The tribunal can also order your employer to reimburse any tribunal fees you paid.

Any tribunal claims made on or after 6 April 2014 could result in your employer paying a financial penalty. Before imposing the penalty, the tribunal must decide if there have been any 'aggravating features', e.g. if your employer fails to cooperate with you or the tribunal.

Even if you have not been awarded any compensation, the court can still order a financial penalty against your employer. If you have been awarded compensation, the financial penalty must be 50% of the award. This will also be the case if there are a number of individual claims made against your employer that you make alone or with other employees.

The penalty must be a minimum of £100 and no more than £5,000. Your employer does not have to pay the full penalty if they pay half of it within 21 days.

However, the tribunal must first consider whether your employer will be able to pay the penalty before ordering it.

If you lose

If you are unsuccessful, then in exceptional circumstances a tribunal may order you to pay costs if it considers that you have acted unreasonably. You might also have to pay any tribunal fees that your employer may have incurred.

Tribunals can sometimes force you to pay a penalty of up to £20,000 if they believe that you have acted abusively, disruptively or otherwise unreasonably. Therefore, you should be certain that you have a valid claim before starting one in a tribunal, otherwise you could risk paying the penalty.

You can ask the tribunal to review its decision, although the grounds are limited. The tribunal will charge further fees for this.

It's also possible to appeal to the Employment Appeals Tribunal (EAT), which only looks at points of law (so you can't appeal if you think the Employment Tribunal just got the facts wrong). There is an issue fee of £400 and a hearing fee of £1,200 for all EAT appeals.