Employment tribunals: practical advice for employees

Employment tribunal cases are often stressful and long drawn-out affairs: easy to get wrong, hard to get right. 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. Here we give you insights in to what you should do when it comes to pursuing an employment tribunal.

 

When would I use an employment tribunal?

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.

Although employment tribunals are free to use, it is worth bearing in mind that even though there are no fees, other costs may well be incurred.  For more detail, see our article about costs associated with employment tribunals.  (That article also explains the meaning of a term you may have come across: ‘without prejudice save as to costs’.)

How effective is 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:

 

  • The employment tribunal system 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.

  • The employer usually 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.  

Judges aspire to impartiality and to try cases before them to the best of their ability, but 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.

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What kind of employment tribunal claim could I have?

There is a long list of claims which you might have (see employment tribunals claims list) but for our purposes here, they can  broadly be broken down into the following:

1. Unfair dismissal and constructive dismissal:

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 £538 (as at April 2020), 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 £88,519 or 12 months’ gross pay (as at April 2020).

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.

 

2. Discrimination or whistleblowing

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 £45,000 (as at April 2020).

The most common award is towards the lower end of this scale, being around £900-£5,000. It’s rare to see the higher end being awarded by judges.

 

3. Breach of contract

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.

 

4. Other

This might include for example, unlawful deduction of wages (see article on wrongful dismissal) or claims under TUPE.

 

What are our top tips to employees on taking a claim to an employment tribunal?

If you are thinking about taking a claim to an employment tribunal, we would offer two main pieces of advice, as follows:

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 other resources (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 straightforward manner.  However, in reality, employees can face an uphill battle to ensure justice is done, whether that is in terms of cost,  of non financial 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.

How do I make an employment tribunal claim?

If your employer refuses to negotiate and you have no option than to submit a claim, there are two main steps, as follows:

1. ACAS Pre-Claim Conciliation

Almost all employment tribunal claims require you firstly to commence what is called ACAS Pre-Claim Conciliation, also known as Early Conciliation. (ACAS is short for Advisory, Conciliation and Arbitration Service).

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.

In order to start the ACAS process, you must visit the ACAS website in order to fill in a Pre-Claim Conciliation form. The purpose of the ACAS 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.

2. Filling in the ET1 employment tribunal claim 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 online version can be a bit tricky.  Before completing the form you should also read our article entitled ‘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 or details 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 have a look at some ET1 details of claims examples (drawn from successful real life cases) in our Employment tribunal templates.

You can present the details of your claim by using a separate document which – at the time of writing – has to be uploaded to the employment tribunal website in Rich Text Format (RTF) .  To do this you need to save the document as an RTF document.

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.

Next steps

For more detailed information about different aspects of employment tribunals and claims,  have a look at our  related guides and articles listed below.

Would you like an experienced employment law solicitor to advise and help you with your claim?  If so, then do get in touch with Monaco Solicitors to find out more.

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