“Being taken to an Employment Tribunal”: A Brief Guide for Employers

30th January 2019

What happens and tips for a successful outcome

Being taken to an employment tribunal is something most employers dread. Whilst not something you would ever wish for, with some basic knowledge of the various steps and solid legal advice, the process needn’t be as daunting as you might imagine.

Most employers usually sense when trouble is brewing. Perhaps an employee has been dismissed who is adamant that they’ve done nothing wrong, or an employee has resigned suddenly who has had a history of being problematic. Even if you have absolutely no idea, when you get the call from the Advisory, Conciliation and Arbitration Service (Acas), it’s time to take stock, get some legal advice and put a plan together.

Acas is a Crown non-departmental public body of the Government of the United Kingdom. Its purpose is to improve organisations and working life through the promotion and facilitation of strong industrial relations practice.

There is currently no cost to employees seeking redress through this process, and the number of claims being submitted is increasing.

So, in a nutshell, what exactly does “being taken to an employment tribunal” actually involve? Melanie Rowe, Employment Law specialist at Murrell Associates, explains the 10 key stages in an Employment Tribunal.

The 10 stages in summary are:

 

  1. Acas settlement discussion (Call from Acas to see whether you wish to settle or fight the claim)
  2. Employee claim form received (Detailing their claim to you)
  3. Complete Employer response form (Explaining what you intend to do)
  4. Case Management Order / Preliminary hearing scheduled (A CMO gives details of what you must prepare for the hearing)
  5. Employee serves schedule of loss (Employee lays out the amount of compensation they are seeking)
  6. Gather Evidence, disclose documents & agree bundle (Listed and indexed evidence are submitted by both)
  7. Prepare and exchange witness statements (Signed documents recording evidence)
  8. Statement of issues and other documents (Relevant questions or other documents to assist the tribunal)
  9. Hearing and judgement (Case heard and considered by judge or tribunal panel)
  10. Costs, applications and appeals (If applicable costs decided and appeals lodged)

 

Stage 1: Acas Early Conciliation (Settlement Discussion)

The disgruntled employee gets in touch with Acas to lodge their complaint. In most instances they must do this within three months of the alleged wrongful act (that is the subject of their complaint) occurring and they cannot lodge an employment tribunal claim without first going through this process.

An Acas conciliator will be appointed to the case. Their job is to ascertain if there’s any scope to resolve the dispute without the cost and stress of an employment tribunal (the tribunal).

You, as their employer, will receive a call from Acas asking if you are interested in exploring early settlement. There is no obligation on you to do so but, if you decide to engage with the process, the conciliator will then go back and forth between the parties to try to reach a deal. If an agreement can be reached, the conciliator will help to draw up a legally binding agreement. If you are not interested in settlement, or a deal cannot be reached, then you move to stage 2.

#Tip 1 – Find out what the employee is looking for.
Often, employers find it beneficial to seek legal advice at this stage; to have the strengths and weakness of their position assessed, to obtain advice on the best and worst case scenarios, and to consider the tactics and commercial reality of the situation as a whole. Frequently the knee-jerk response is to resist the claim regardless of the cost. However, sometimes it may not be financially worth fighting. Getting the full picture can help you make an informed decision and save you money in the long term.

 

Stage 2: Employee claim form received (known as an ET1)

The ET1 Claim Form is completed by the employee (the claimant) and filed with the tribunal. The tribunal will send you a copy. The tribunal will refer to you as the respondent.
 

Stage 3: Complete an Employer Response form (known as an ET3)

If you intend to resist the claim, the ET3 must be completed and filed with the tribunal within 28 days of receipt providing full details of your position. Missing this deadline may mean that you are not allowed to defend the case.

#Tip 2 – Appoint a solicitor sooner rather than later
If you are considering appointing a solicitor the sooner you do so the better. This will ensure that there is time to submit a full, consistent and robust defence. It is not always possible to add in new legal points later that are not included in this document. A lawyer will also be able to advise you on whether there are grounds to apply for strike out of the claim or for an Order requiring the claimant to pay a deposit to the tribunal to continue with it.

 

Stage 4: Case Management Order issued and/or Preliminary Hearing scheduled

If the claim is relatively straightforward (for example an unpaid wages or unfair dismissal claim) the tribunal may automatically schedule a hearing and issue a standard Case Management Order giving directions with which both sides must comply to prepare the case for that hearing.

Alternatively, the case may be listed for a preliminary hearing. The purpose of the preliminary hearing is to deal with any initial legal points and to consult with the parties in relation to the steps and timeframes required in order to prepare the case for the final hearing. It may take place in person or over the phone. More complex claims, such as those involving an aspect of discrimination, are usually listed for a preliminary hearing as a matter of course. This is because more bespoke directions are often required (for example to consider the number of witnesses and/or length of the hearing) and there may be legal points requiring further thought or clarification. Following the preliminary hearing, the judge will then issue a tailored Case Management Order.

#Tip 3 – It’s never too late to get some legal support if you are representing yourself
If you are concerned about representing yourself at a preliminary hearing, consider seeking legal advice to explain the process, assist with your preparation and/or represent you at that hearing. You can obtain advice purely in relation to a single issue if you are concerned about spiralling legal costs.

 

Stage 5: The employee will serve a schedule of loss

The point of this document is to set out exactly what remedy the claimant employee is seeking and how this is calculated. You should then know exactly what you are facing and can obtain legal advice as to the likelihood of each of the aspects of the claim being awarded.

 

Stage 6: Gather Evidence, disclose documents and agree bundle

You will need to gather all documents relevant to the claim (whether these assist your case) and compile these into a logical list. This will then need to be sent to the claimant by the date set by the tribunal. Likewise the claimant will send you their list. You may request copies of any of the documents listed. If the claimant is represented, it will normally be their job to combine both sets of documents into an indexed bundle and prepare sufficient copies for use at the hearing. If the claimant is not represented, the tribunal will usually direct that you perform this task. A page limit will normally be set.

 

Stage 7: Prepare and exchange witness statements

Every individual who you wish to give evidence in the case should prepare a statement signed with a statement of truth. Witness statements should be clearly set out with numbered paragraphs. These should be mutually exchanged ahead of the hearing on a date set by the tribunal. Every individual who provides a statement should attend the hearing to be cross examined by the claimant employee or their representative. If they do not attend, their statement will be given very little (if any) consideration by the tribunal.

 

Stage 8: Statement of Issues and other documents

If you are represented, your lawyer is likely to prepare a statement of relevant questions or other documents that will assist the tribunal in making their judgment.

 

Stage 9: Hearing and judgment

The parties attend for a judge or tribunal panel to consider the case and give judgment. However, for various reasons it is not unusual for hearings to be postponed at the eleventh hour and you should be prepared for this. The hearing is much less formal that court proceedings without wigs, gowns or the need to stand up. It is common for witness statements to be “taken as read” which means that witnesses only have to confirm their statement to be true and accurate. They do not give further evidence unless specifically asked. They are then cross-examined by the other party or their representative. The hearing is then adjourned for the judge or panel to contemplate and then reconvened when the judgment is ready. If the evidence is concluded at the end of the allocated time slot without judgment having been given, this may be reserved and given in writing. If the claimant is successful, the hearing will commence again to deal with the issue of how much compensation should be awarded.

#Tip 4 – Don’t forget Acas is there to help you too
Throughout the process Acas remains available to assist with settlement if, as evidence is exchanged and the hearing draws closer, either side reconsiders their stance in this regard.

 

Stage 10: Costs applications and appeals

It is unusual for costs orders to be made in employment tribunal proceedings. However, in certain (limited) circumstances it may be appropriate for a party to make an application for some or all of their costs to be paid by the other side.

A Notice of Appeal must be lodged within 42 days of the date of the order, decision or judgment appealed against.

An employment tribunal decision can only be appealed on a point of law. You cannot appeal simply because you are unhappy with the outcome.

If you would like more information on an employment tribunal claim or employment law generally, please contact Melanie Rowe on 01872 227006 or by email at melanie.rowe@murrellassociates.co.uk