The Rights of an Employee at an Employment Tribunal
Understanding Your Rights As An Employee in Relation To Employment Tribunals
In this article we will look at the Employment Tribunal system, its purpose, its workings and its levels as, although our preference is to settle before the case reaches the courts, the threat of Employment Tribunal proceedings underpins most employer/employee negotiations. It is, therefore, important that any employee embarking on such a negotiation understands the context of the Employment Tribunal system.
It follows that, if the threat of Employment Tribunal proceedings underpins most negotiations, the employee seeking to negotiate must understand the basic rights they have to bring proceedings against their employer. We will look at important matters such as limitation periods and time-scales.
What are employment tribunals and why do they exist?
There is no point in having the protection of the status of an employee and the rights which that brings with it if there is no way of enforcing those rights: this is why Employment Tribunals were invented. Initially called “Industrial Tribunals”, they were created in 1964 as a forum in which employees could have their disputes adjudicated by a qualified lawyer, a representative from the Trades Union, and a representative from the business community (usually an HR professional or a member of the Institute of Directors). They were free to access and meant to be informal, unlike the civil courts which had arcane rules of procedure and still used a great deal of Latin, a device which had been used since Medieval times to try and prevent access to knowledge and justice for the common man or woman. In many ways, Industrial Tribunals provided the access to justice so lacking in the court system, and in the way in which the everyday person needed it most: to enforce their working rights.
So, if you have a claim against your employer for any breach of your working rights (aside from personal injury arising from an accident at work), then the chances are that any claim you need to make to enforce those rights would be brought in an Employment Tribunal.
How have employment tribunals evolved?
The modern system has moved on a great deal since 1964 and has been through good times and bad, usually depending upon the government at the time. For example, the recent (and highly controversial) introduction of fees of up to £1,200 to bring an Employment Tribunal represented a huge setback for employment rights and Employment Tribunals. The number of employees who felt able to exercise their rights in the Employment Tribunal fell dramatically between the years 2013 to present. Thankfully, in 2017, after a hard-fought battle by UNISON, the Supreme Court overturned the Order the government created which introduced the fees. Therefore, Employment Tribunals are now free to use again. Although it is worth bearing in mind that even though there are no fees to submit a claim to an Employment Tribunal, other costs could be occurred – read more in our article about costs associated with Employment Tribunals and the term ‘Without Prejudice Save As to Costs’.
Advice for employees in regards to Employment Tribunals
Try and settle your case before you reach the Employment Tribunal!
While we fully support the Employment Tribunal system and the vital role it plays in upholding the rights of employees, like any system it is far from perfect. Unfortunately, it suffers from chronic under-funding, which means that delays are rife. It can take many months, even years for a case to be heard. Furthermore, in almost all cases, the employer has greater resources than the employee to fight a case in the Employment Tribunal. Consequently, the employee often suffers great financial hardship or inequality of arms (or both) when it comes to a hearing. Employers will often engage several solicitors and at least one barrister to fight their case. An employee may, at most, be able to afford a solicitor and junior barrister, and will often not be able to afford to engage them to undertake the same amount of time taken on the case as the lawyers engaged by the employer. Furthermore, and most importantly, in almost all Employment Tribunal cases it is the employer that controls the evidence. It has access to all the documents and nearly all the witnesses called will be current employees of the employer, all of whom will most likely give evidence against you, the employer. While the Employment Tribunal has the power to order disclosure of evidence, it does not have the same powers as the high court, for example, in terms of disclosure and the default of disclosure. It cannot, for example, hold parties in contempt of court for failing to abide by orders. Often, employers will not disclose to their own lawyers documentation crucial to the employee’s case, therefore rendering the employee at a great disadvantage.
Finally, judges are human too, and while all judges aspire to impartiality and to try cases before them to the best of their ability, they do not always make the correct decisions for myriad reasons. A judge may have had an employee in his tribunal before in similar circumstances who presented a poor case and lost. She may take a dislike to the employee, no matter how strong his case. She may have woken up in a bad mood or be dealing with problems in her own life. The point is that when you submit your case at a tribunal for judgment, you are doing so to a human being with their own ideas, ideals and prejudices and it can be a capricious system at times.
Therefore, while in theory the Employment Tribunal system is a jurisdiction in which employees are able to bring claims against employers in a relatively straight-forward manner, in reality, employees face an uphill battle to ensure justice is done, whether than is in terms of cost, of resources or in control of the evidence. This is why at Monaco Solicitors we are dedicated to trying to negotiate and settle cases before an Employment Tribunal claim becomes necessary.
Watch out for Employment Tribunal Time Limits
Employment Tribunals employ strict time-limits in respect of making claims, which will require you to commence ACAS Pre-Claim Conciliation first (see below), so it is vital that you adhere to them. Almost all claims require you to start proceedings by commencing ACAS Pre-Claim Conciliation three months, less one day, from the date of the act of which you wish to complain. Therefore, if you have been unfairly dismissed on the 1 September, then you must commence Pre-Claim Conciliation by midnight on 30 November. Likewise, if you have been discriminated against at work on 14 March, you must commence Pre-Claim Conciliation by 13 June, whether you are still employed or not.
Making a Claim
Before you start a claim in an Employment Tribunal you must first begin Pre-Claim Conciliation. In order to do this, you must visit the ACAS ( The Advisory, Conciliation and Arbitration Service) website in order to fill in a form and commence the process. The purpose of the process is to enable an independent person (and ACAS Conciliator) to act as a fulcrum between employee and employer and try to broker a settlement before a full application to an Employment Tribunal is required. Usually this process involved the ACAS Conciliator relaying information between the parties or the parties’ legal representatives.
The initial period for conciliation is one month, although that period can be extended by 14 days if both parties agree to the extensions. If the dispute is not resolved within this time-period then the ACAS Conciliator will issue a certificate to the employee that the process has been completed, and the employee will then have one full calendar month from the date of the certificate to file an Employment Tribunal claim. The only exception to this is when an employee commences Pre-Claim Conciliation with more than one month left on the usual limitation period, in which case the effect of Pre-Claim Conciliation is that the clock stops and the employee then has remainder of the original time-period to file the claim. That said, in order to avoid any confusion, our recommendation is to make a claim at most one month from the end of ACAS Pre-Claim Conciliation.
Filling in the ET1 Form
Once you have the ACAS certificate, you are able to fill in form ET1, which must be completed and sent in to the Employment Tribunal system in order to make a valid claim. The form is simple to fill in, although the coding behind the online forms is somewhat lacking in sophistication – before completing the form you should also read our article titled ‘How to Fill in the Employment Tribunal ET1 Claim Form‘.
The form contains basic details which you should be able to easily fill in. When it comes to setting out the particulars of your claim, you must explain the facts of the case and what it is that you are claiming, be it unfair dismissal, sex discrimination, a redundancy payment and so on. You can do this using a separate document (you can find some template examples that we have provided for you here), however, in order to upload it to the Employment Tribunal website, the document must be in Rich Text Format (RTF). To do this you need to save the document as an RTF document in the same manner in which you would convert a Word document into a PDF document, for example. In Word, you need to go to “File” then go to “Save As”, then go to the box which says “Word”, click on it and then select RTF from the drop-down list of options, then save.
You can then upload this document directly from the Employment Tribunals form when submitting the claim. Always keep a copy of the ET1 form, the particulars of your claim and confirmation that your ET1 form has been filed.