This guide provides a general overview of the Employment Tribunal claims process in England and Wales when starting or defending a claim. It is not comprehensive.
It is impossible to state with certainty exactly what will happen at the beginning of a claim. Each situation is unique and the precise steps taken will vary according to the overall circumstances of your case, what actions are taken by the parties and what decisions are made by the employment judge or Tribunal panel.
Dealing with an Employment Tribunal claim requires a significant commitment from you and your organisation. We will need you to assist with the preparation of documents and potentially attend an Employment Tribunal hearing to give evidence.
Please contact us if you have any questions or would like more information.
The overriding objective
Employment Tribunal proceedings in England and Wales are governed by the Employment Tribunals Rules of Procedure. Their overriding objective is to enable the Tribunal to deal with each case fairly, justly and at proportionate cost.
We may either represent you in Tribunal hearings ourselves or instruct a barrister to represent you and assist with the preparation of your case strategy. This depends on the complexities of your case. We will help you to instruct a barrister in due course as necessary.
ET1 and particulars of complaint
Form ET1 and the particulars of complaint are prepared by the claimant and start proceedings. They describe the nature of the claim, facts of the case and what remedy the claimant wants, such as an award of compensation or reinstatement to their previous role. Any claim must be submitted to the Tribunal within three months of the date of termination of employment.
T3 and grounds of resistance
This provides a defendant’s answer to the claim and must be submitted within 28 days. For each aspect of the claim, the defendant must provide an admission, denial with reasons or require proof. If no ET3 is submitted, the Tribunal may award the claimant judgment in default.
The Tribunal can strike out a party’s claim or response in whole or in part if there are no reasonable grounds for starting or defending a claim, the proceedings are an abuse of process or a party has not complied with the Employment Tribunal Rules of Procedure or a Tribunal order.
The Tribunal has wide discretion to manage a claim as it considers appropriate to progress it to a full hearing. It can identify issues, make orders for the provision of more information, documents and witness evidence as well as set a timetable. It will either issue a written case management order or set a preliminary hearing to determine any administrative or preliminary legal issues.
The parties are encouraged to consider settlement at all stages of the claims process. Negotiations can take place through early conciliation, mediation and without prejudice meetings between the parties.
Early conciliation is a process in which Acas facilitates communication between the parties. Acas is an independent public body funded by the government whose full name is the Advisory, Conciliation and Arbitration Service. Early conciliation is not mandatory but registration of a potential claim with Acas is mandatory. Mediation is a confidential process in which an impartial mediator encourages discussion between the parties in the hope of reaching a settlement. What is discussed at a without prejudice meeting remains private and cannot be disclosed to the Employment Tribunal except in certain circumstances.
The Tribunal assesses a claim on the balance of probabilities. It will do this by considering documents, witness evidence and any expert reports. Witness evidence is provided by written witness statements. So far as possible, a witness statement should be in the witness’ own words, say which statements are made from within their own knowledge and refer to any relevant documents. A witness statement usually stands as evidence in chief. This means that its contents do not need to be read out to the Tribunal. A witness can, however, be cross-examined by the other party’s solicitor or barrister.
Any person who starts a claim has a duty to mitigate their loss and show evidence of this, such as registration with recruitment agencies, interviews attended or steps taken to establish a business. The Tribunal may decrease the amount of any compensation awarded if no mitigation evidence is submitted.
Each party must provide documents to the other party that are relevant to the claim. Relevant documents must be disclosed regardless of whether they support or adversely affect a party’s case.
Documents that are privileged do not need to be disclosed. Legal advice privilege protects confidential communications between a lawyer and their client. Litigation privilege protects communications produced for the purpose of litigation between a client or their lawyer and a third party subject to further criteria.
The hearing bundle comprises the ET1 and particulars of complaint, ET3 and grounds of resistance, any orders made by the Tribunal and any other key documents. It is usually prepared by the claimant’s lawyers in co-operation with the defendant’s lawyers.
In advance of a full hearing, each party may choose to provide a skeleton argument, which argues its case.
It can take at least 6 months to reach a full hearing after a claim has been started. The duration of any hearing depends on the complexity of the facts and legal principles involved and how much witness evidence the Tribunal panel is required to consider. Most claims will be heard in public over one day by either an employment judge sitting alone or a panel comprising an employment judge and two lay people. Juries do not sit in the Employment Tribunal. An Employment Tribunal is less formal than a court. Lawyers and panel members wear suits and business attire rather than wigs and gowns.
The employment judge or panel will either provide a decision immediately at the end of a hearing or reserve the decision, meaning that it will be provided at a later date.
Unlike in litigation in the courts, there is no general rule that the losing party pays the costs of the winning party. It is very unlikely that the Tribunal will decide that either party should pay the costs of the other. This only happens in exceptional circumstances such as when the Tribunal decides that a claim should not have been started or defended or where a party or their lawyers have acted vexatiously or abusively.
A losing party hopefully respects the Tribunal’s decision. If it does not, the winning party will generally have to take further action in court rather than the Tribunal to enforce its decision. This could involve seizing and selling assets or an attachment of earnings order under which part of the losing party’s earnings is paid to the winning party until any compensation has been paid in full.
A decision can be appealed to the Employment Appeal Tribunal. An appeal can only be made on a point of law or perverse finding of fact. It must be submitted within 42 days of the Employment Tribunal’s decision.