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, whether you’re an employee embarking on settlement negotiations, or on an employment tribunal claim, to understand something about the employment tribunal system, the way it works, and your rights within it.
If you’d like to find out more about the steps involved from start to finish in taking your claim to a tribunal hearing, have a look at our more detailed practical guide on making your tribunal journey
What is an employment tribunal?
Employment tribunals are types of law court.
They are set up and funded by national governments in the UK to help enforce employment law and they deal with such claims as unfair dismissal, discrimination at work and breaches of employment contract– as outlined further below.
As their name suggests (‘tri’ meaning three), employment tribunal panels consist of up to three people: an employment judge who acts as chairperson, a specially trained person representing employers’ organisations and another representing employees’ organisations.
In non-complex cases, however, an employment judge may be the sole member of the tribunal panel.
Employment tribunals receive and judge claims of unlawful treatment from employees (claimants) against their employers (respondents). They decide what, if any, financial compensation an employee should receive from their employer for the bad treatment inflicted upon them.
There is no charge to either side for the services of employment tribunals.
There are separate tribunal systems serving England & Wales, Scotland and Northern Ireland. See our guide on Employment law for further detail about tribunals and courts in this country.
When would you 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.
The drawbacks of tribunals: What can you do about them?
The employment tribunal system plays a vital role in upholding the rights of claimants (ie employees), but – like any system – it has some shortcomings and presents you with various challenges. For example:
Employment tribunals suffer from chronic under-funding, so delays are rife
It can take many months, and often longer, for a case to be heard. The Covid-19 pandemic has resulted in the backlog of employment tribunal cases being even greater.
There is not a lot you can do as an individual to prevent delays in your case being heard by a tribunal.
However, given that you already know there will be a delay until your hearing, you should treat it as an opportunity for strengthening your case. Delays give you more time to do such things as:
- find out everything you can about employment tribunals and how they operate,
- collect and collate evidence, using all the means available to you, such as Subject Access Requests and the (discrimination) Questions Procedure. See our guide on evidence gathering for further information.
- persuade witnesses to support you at the tribunal hearing and to contribute witness statements.
You will therefore be in a much better position to present your case at your tribunal hearing
The employer usually has greater resources than the employee to fight an employment tribunal case
Employers will frequently engage several solicitors and at least one barrister to fight their case. An employee may be able to afford a solicitor and junior barrister but will often not be able to afford to engage them to do the same amount of preparatory work as the lawyers engaged by the employer.
If that’s the case, and if you don’t have legal expenses insurance (check your household/similar insurance policies to find out) then you will either have to represent yourself at the tribunal or at least do more of the preparatory work yourself.
To help you with this, you will need to seek out sources of free – or at least affordable – legal help and advice.
Websites of private law firms like Monaco Solicitors can provide excellent sources of information and practical advice. Some also offer free consultations and special rates for certain kinds of cases.
Have a look at the websites of law firms who specialise in employment law in particular, to see what they offer, what their reviews are like and contact them to see how they might be able to help you. (See our guide on Employment law for more.)
Organisations like Acas, Citizens Advice and Working Families are really helpful and so are legal advice centres and similar bodies which you should be able to locate in your area by means of a quick online search.
Employment tribunal outcomes are not always predictable
Tribunal panels 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). Moreover, you don’t know what tactics your employer’s representatives are going to adopt in defending the claim at the hearing.
The point is that when you submit your case to a tribunal for judgment, there is no guarantee that you will win.
What you can do to increase your chances of success is to:
- ensure that you have the strongest possible evidence to support your claim,
- select the correct claims that a tribunal can hear and which relate to your case (see also below),
- present your ET1 claim form case details succinctly and coherently (and see below),
- be sure you understand what the tribunal requires from you at each stage in your journey to the tribunal hearing,
- comply with all tribunal directions and deadlines.
- prepare adequately for the tribunal hearing and rehearse the points you want to get across when cross-examined.
There will be a lot for you to learn and a lot of work involved, but you can do it!
What kind of tribunal claim could you 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 divided into the following:
1. Unfair dismissal and constructive dismissal:
The basic award
The basic award is calculated like a statutory redundancy pay – a week’s pay or £544 (from 6 April 2021), whichever is lower, for every year of service with an adjustment for an age factor if you are over 41.
The compensatory award
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 £89,543 or 12 months’ gross pay (from 6 April 2021).
So, if your gross yearly pay is higher than this amount, you can’t get any more at a tribunal. If your gross yearly pay is less than this, the maximum award for unfair or constructive unfair dismissal 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 both types of case are 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 £45,600 from April 2021. (See Discrimination compensation for more detail.)
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 withholding your share options.
For this reason, senior executives will need to consider High Court action, where there is no limit. However, this route is difficult – and costly – so it may be preferable just to threaten your employer with High Court action because no one wants to be there at all if they can possibly avoid it.
See also our guide on employment contracts.
What questions should you ask before making a tribunal claim?
The kinds of questions you should ask before making an employment tribunal claim really depend on what your motives are for making a claim.
For example, you may be thinking of making a claim mainly to put pressure on your employer in negotiations for a settlement agreement. You may have no real intention of taking the entire journey to an employment tribunal hearing.
However, even if you think that your employer would be willing to negotiate, you can’t be sure that they will be prepared to pay you the level of compensation that you think you deserve. So you may find yourself being cross-examined at an employment tribunal hearing after all.
Whatever your motives for considering an employment tribunal claim, if you are prepared to see it through to a tribunal hearing, then you need to think very carefully about what you are letting yourself in for.
Below is a checklist of 9 questions to ask yourself before making that final decision.
If you don’t know the answers, or if the answer to any of them is ‘no’, then you need to do some more research and/or think again about whether this is a journey you really want to make.
1. Have you tried to settle your dispute informally with your employer?
The tribunal will look for evidence that you have tried to settle your dispute with your employer informally before deciding to pursue an employment tribunal claim. (See our guide on Settlement agreements.)
2. Are you within the tribunal time limits for bringing a claim?
You only have three months less a day from the date of the alleged offence or effective date of your employment termination to submit your claim. (See Time limits.)
3. Have you served sufficient time with your employer to bring the claim you want?
For example, you need at least 2 years for unfair dismissal and constructive dismissal. (See ‘Two years’ service rule’.)
4. Do you know which of the employment tribunal types of claim you will be making?
You need to be certain that it is in fact an employment law issue and one that an employment tribunal can hear. (See List of claims).
5. Have you got the evidence you need to convince a judge about the strength of your claim?
If the evidence you present in your claim is not strong, then your claim can be rejected or ‘struck out’ by a tribunal and never get heard. (See Evidence gathering.)
6. Can you get legal representation or are you able to represent yourself?
Some legal help may be available from your trade union if you are a member, or by means of legal insurance expenses cover which may already be included in your household insurance cover. Otherwise, you will need the means to secure representation privately. (See Employment tribunal costs.)
Alternatively, if you have some legal knowledge and plenty of resourcefulness, energy, time and good presentation/writing skills, you can prepare for and successfully conduct your own case, as mentioned earlier.
7. Are you sufficiently mentally resilient to go through the employment tribunal claims process?
To succeed in a tribunal case, you need to be objective, dispassionate and be able to control/suppress your emotions. That’s not easy when it’s your own case.
8. If you win your case, is your tribunal award worth your financial/other inputs?
If you spend a year’s effort and several thousand pounds on your tribunal case, you would be forgiven for expecting the financial award from the tribunal to at least cover those costs.
To some employees, compensation is critical and they would not pursue a claim if they thought that the award was unlikely at least to cover their costs.
To others, however, that is a secondary consideration and the most important thing is to win their employment case at a tribunal.
Which type of claimant are you and does that make a difference to your decision to make a claim? (See our guide on tribunal costs.)
9. If you win your case, is your employer likely to be able to pay your compensation award?
Claimants don’t always receive their awards or at least not the full amount, because their employer is not in a position to pay it. So, consider the financial health of your employer’s business before you submit a tribunal claim. (For more on this, see our guide on tribunal judgements and appeals.)
How do you make a tribunal claim?
If your employer refuses to negotiate and you have no option than to submit a claim, there are two main steps:
1. Acas Pre-Claim Conciliation
Almost all employment tribunal claims require you first to commence what is called ‘Acas Pre-Claim Conciliation’, also known simply as ‘Early Conciliation’.
The purpose of the Acas process is to enable a specially trained independent person (an Acas conciliator) to act as an intermediary between you and your employer. The conciliator’s goal is to try to broker a settlement between the two parties before a full claim application to an employment tribunal is required.
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. The process lasts for a month but may be extended by a fortnight or reduced, as the conciliator thinks fit.
In order to start the Acas process, you have to visit the Acas website and fill in a Pre-Claim Conciliation form.
See our guide on participating in the Acas pre-claim conciliation process for further detail.
2. Filling in the ET1 employment tribunal claim form
Once you have the Acas certificate, you can fill in form ET1, which must be completed and submitted to the employment tribunal in order to make a valid claim.
The form is simple to complete but before you do, we recommend you read our article ‘How to complete the employment tribunal ET1 claim form‘.
The most important part is setting out the particulars of your claim (also called details of your claim). Here, you must explain the facts of the case and what it is that you are claiming, such as unfair dismissal, sex discrimination, redundancy payment and so on.
You can have a look at some examples of ET1 details of claims which are drawn from successful real-life cases, in our Employment tribunal templates.
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 Monaco Solicitors can help you.
Our established law firm practices employment law only and represents employees only. We have plenty of experience in successfully negotiating settlements and in helping claimants like you with their employment tribunal cases.
If you would like to find out more about our services and how we could help, do get in touch for a no-obligation consultation: