Employment tribunal cases are often stressful and drawn-out affairs: easy to get wrong, hard to get right. (Hence why we specialise in negotiating settlements.)
Here we give you insights in to what you, as an employee, should do when it comes to pursuing an employment tribunal.
- Employment tribunal claims index: An employee’s right to sue
- Employment tribunal claims: time limits
- Employment tribunals: Commencing the ACAS pre-claim process
- Employment tribunals: preliminary hearings
- Witness statements in employment tribunals
- Employment tribunal costs, including ‘without prejudice save as to costs’
- ET1 claim form: Race discrimination, breach of contract & withholding commissions
- ET1 claim form: Withholding commissions
- ET1 claim form: Sales commission structure changed after developing depression
- ET1 claim form: Unfair redundancy and equal pay claim
You need to submit a description of your claim when commencing tribunal proceedings, and this will form the cornerstone of your entire journey through the system. In the following outline we guide you through it and also discuss how much an employment tribunal would be likely to award for different kinds of claims.
The employment tribunal
To begin with, let’s look briefly at the employment tribunal system, its purpose, its workings and its levels. 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 for you, as an employee embarking on such a negotiation, to understand something about the employment tribunal system, the way it works, and your rights within it.
Development of employment tribunals
The forerunners to employment tribunals were ‘industrial tribunals’. They were established in 1964 and replaced in 1998 with the present-day system. Nowadays, 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.
The modern system has moved on a great deal since 1964 and has been through good times and bad. For example, the introduction in 2013 of fees (up to £1,200) to bring an employment tribunal claim represented a huge setback for employment rights. The number of employees who felt able to exercise their rights in the employment tribunal fell dramatically between 2013 to 2017.
Thankfully, in 2017, the Supreme Court overturned the order that the government had created to introduce the fees. Employment tribunals are now free to use once more and according to the Law Society, the number of claims being submitted to tribunals is again on the increase.
It is worth bearing in mind however that even though there are no fees to pay for submitting a claim to an Employment Tribunal, other costs may well be incurred. For more detail, see our article about costs associated with employment tribunals. This also explains the meaning of a term you may have come across: ‘without prejudice save as to costs’.
Shortcomings of the employment tribunal system
While the employment tribunal system plays a vital role in upholding the rights of employees, you should be aware that – like any system – it is far from perfect. For example:
- It suffers from chronic under-funding, which means that delays are rife. It can take many months, and sometimes even longer, for a case to be heard.
- The employer usually has greater resources than the employee to fight a case in the employment tribunal. Consequently, the employee often suffers financial hardship or inequality of arms (or both) when it comes to a hearing. Employers will frequently 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 preparatory work on the case as the lawyers engaged by the employer.
- It’s usually the employer that controls the evidence in employment tribunal cases. The employer 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 employee. While the employment tribunal has the power to order disclosure of evidence, it does not have the same powers in this respect as the high court. For example, it can’t hold parties in contempt of court for failing to abide by orders. Often, employers will not even disclose to their own lawyers documentation which is crucial to the employee’s case, thereby putting the employee at a great disadvantage.
- Employment tribunal outcomes are not always predictable. Whilst judges aspire to impartiality and to try cases before them to the best of their ability, they are not perfect (and neither would they claim to be). 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. The outcomes of a hearing can never be totally predicted and there is no guarantee that you will win, irrespective of how strong you think your case is.
What kind of employment tribunal claim could I have?
There is a long list of claims which you might have (see employment tribunals claims index) but for our purposes here, they can broadly be broken down into the following:
There are 2 main elements in a tribunal award for unfair or constructive dismissal, being the basic award and the compensatory award.
The basic award is calculated like a statutory redundancy pay – a week’s pay or £525 (as at September 2019), whichever is lower, for every year of service with an adjustment for an age factor if you are over 41.
The compensatory award is calculated with reference to how much you have lost.
There is a statutory cap on the compensatory award in unfair dismissal (including constructive unfair dismissal) claims which is the lower of £86,444 or 12 months’ gross pay (as at September 2019).
So, if your gross yearly pay is higher than this amount you can’t get any more at tribunal. If your gross yearly pay is less than this, the maximum award for unfair or constructive unfair dismissal is is one year’s pay.
All claimants have a duty to mitigate their loss: you must try to find alternative work at the same, or higher, salary. The tribunal will factor in your salary from your new job and your attempts to mitigate your losses into the compensatory award.
For discrimination claims or detriments due to whistleblowing you can also claim compensation in the same way as for unfair dismissal (see above) if you have lost your job as a result of it.
However, there is no upper limit to the award for compensation, although it is difficult to prove. You may also be awarded an amount for ‘injury to feelings’ that reflects how serious the discrimination was. This can vary from £900 to £44,000 (as at September 2019).
The most common award is towards the lower end of this scale, being around £500-£5,000. It’s rare to see the higher end being awarded by judges.
There is a £25,000 limit in the employment tribunal for breach of contract claims, such as not being paid your notice period or wages, or for share options.
For this reason, senior executives will need to consider High Court action, where there is no limit. However, this route is fraught with difficulties – and costs – so it may be preferable just to threaten your employer with High Court action, because no one wants to there at all if they can possibly avoid it.
ACAS pre-claim conciliation
Almost all employment tribunal claims require you to commence ACAS Pre-Claim Conciliation (also known as Early Conciliation) first, and you must start the ACAS process at least 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 1st September, then you must commence Pre-Claim Conciliation by midnight on 30th November. Likewise, if you have been discriminated against at work on 14th March, you must commence Pre-Claim Conciliation by 13th June, whether you are still employed or not.
Advice for employees about employment tribunals
1. 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 their tribunal before, in similar circumstances, who presented a poor case and lost. They may take a dislike to the employee, no matter how strong the employee’s case. They may have woken up in a bad mood or be dealing with problems in their 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.
In theory, the employment tribunal system is a jurisdiction where employees are able to bring claims against employers in a relatively straight-forward manner. However, in reality, employees can face an uphill battle to ensure justice is done, whether that is in terms of cost, of resources or of controlling 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.
2. 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 above), 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 1st September, then you must commence Pre-Claim Conciliation by midnight on 30 November.
Likewise, if you have been discriminated against at work on 14th March, you must commence Pre-Claim Conciliation by 13th 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 (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 (an ACAS Conciliator) to act as a fulcrum between employee and employer and to try to broker a settlement before a full application to an employment tribunal is required.
Usually this process involves 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 extension.
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. If that’s the 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 complete 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 (we have provided some ET1 claim form templates in the Helpful Guides listed above). However, in order to upload the separate document to the employment tribunal website, the document must be in Rich Text Format (RTF) at the time of writing.
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.