What Happens at an Employment Tribunal?

When an employee wants to make a claim against their employer at an employment tribunal, in most cases they must notify the Advisory, Conciliation and Arbitration Service (Acas) first. Statistical information produced by Acas shows that between July 2020 to June 2021at least 77% of employment tribunal cases received by them did not go on to have a hearing.

Acas offers early conciliation to try to reach an agreement between the employee and employer and avoid the employee making a claim to the employment tribunal. If a case is not resolved by early conciliation, the claimant submits an ET1 form to make a claim to the employment tribunal.

Ministry of Justice (MoJ) figures state that the number of single claim receipts to the employment tribunal service decreased by 13% to 9,100 in the quarter January to March 2021, when compared to the same period in 2020. The effects of COVID-19 on the workplace and its workers is more than likely to have caused this fall in numbers.

It certainly has had an effect on the timelines for processing and hearing employment tribunals during this period of time, as despite the decrease in cases, the outstanding caseload rose by 39%, when compared to the same period in 2020.

What is an employment tribunal?

Employment tribunals are independent judicial bodies that deal with claims brought against employers by employees. They are a court of law and a formal process will be followed; however, they are not as formal as criminal proceedings, for example at the Crown Court, as there are no wigs or gowns and it is much more like an extremely formal disciplinary hearing.

Employment law giving employees statutory rights is complex, and includes:

• Agency Workers Regulations 2010.
• Employment Relations Act 1999.
• Employment Rights Act 1996.
• National Minimum Wage Act 1998.
• Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
• The Equality Act 2010.
• The Health and Safety at Work etc Act 1974.
• The Maternity and Parental Leave etc. Regulations 1999.
• Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

Most of these statutory employment rights can only be enforced in the employment tribunal.

Typically, although not always, employment tribunal claims relate to the following employment issues:

• Unfair dismissal.
• Wrongful dismissal.
• Constructive unfair dismissal.
• Discrimination.
• Equal pay.
• Unlawful deductions from wages.
• Whistleblowing.

Contractual employment disputes can be dealt with by the employment tribunal or an ordinary civil court, for example the High Court.

Other employment disputes that are heard by the civil courts, include:

• Accidents at work.
• Restrictive covenants.
• Contract claims for non-payment of wages.
• Some wrongful dismissal claims and other contract claims.

Employment tribunals were first set up in 1964 as industrial tribunals to be a fast, informal and inexpensive way of resolving employment disputes. In 1997 the name changed to become the Employment Tribunal Service (ETS).

You do not have to pay a fee to make a claim to the employment tribunal. However, both employers and employees often have legal representation, so, unless you decide to represent yourself, you will have to consider the cost of legal fees. If you are a member of a trade union you may be able to get help with progressing your tribunal claim, or legal expenses insurance may cover your legal costs.

Legal expenses insurance (LEI) is most commonly found under your home insurance, car insurance or similar policy and can offer tens of thousands of pounds worth of cover.

Employment tribunal solicitors’ fees for representing you for an employment tribunal will vary and they will depend on such factors as the complexity of the case. Some legal firms may be willing to quote you for a “no win no fee” arrangement, which is typically a fixed percentage of any amount you are awarded should you win your tribunal case.

In the employment tribunal, there is generally what is called a “no-cost” regime which means that each party pays for their own lawyers, barristers, etc., whether they win or lose. This has usually helped with an individual’s right and ability to access justice. You don’t have to worry about having to find thousands of pounds to pay for your employer’s expensive solicitors and barristers if your claim is unsuccessful.

However, case law has established that tribunals are more likely to award employment tribunal costs against you if you lose the case and your conduct was considered by the tribunal judge to be “unreasonable, vexatious and/or misconceived”.

What happens at an employment tribunal?

There are two main types of employment tribunal hearing:

• Preliminary hearing – This is a short hearing to address any issues so that the case can proceed smoothly before a full hearing. For example, there may be a disagreement over whether or not the claimant was an employee and whether they were entitled to bring the claim.
• Full hearing – This is when all the evidence is heard.

In less complex cases such as unfair dismissal and wages claim, for example, the case will be heard by the Employment Judge sitting alone. In more complex cases such as discrimination, the Judge will be accompanied by two panel members, one most likely from a trade union background in order to give the perspective from an employee’s point of view and one from an HR/business background in order to give the perspective from the employer’s side.

The tribunal rooms are normally small or medium-sized and there are chairs at the back of the room. This is known as the public gallery, where the parties, any witnesses, their companions and any members of the press and public can sit, as all employment tribunal hearings are public hearings unless otherwise ordered. The employee and employer, known as the Claimant and Respondent, will usually sit up front at a separate desk with their own representatives, facing the Employment Judge, and the panel members, if required.

On the day of the tribunal, you will usually need to arrive around 9.00 am to 9.30 am, but the hearings are unlikely to start until around 10.00 am. You will need to sign in at the reception and advise the reception staff whether you are attending as the Claimant or Respondent, whether you are a witness or companion for either party, or whether you are a member of the press or public. Claimants, Respondents and witnesses will then be sent to a waiting room.

The Claimant and Respondent are provided with separate waiting rooms and other Claimants and Respondents may also be in the waiting rooms as there is often more than one case being heard on the same day. You can use the waiting rooms as a base throughout the course of the day.

Claimants and Respondents will be allocated a clerk who will liaise with you or your representative and collect any necessary bundles or papers prior to the commencement of the hearing. You will be advised when the Judge is ready to hear your case and informed where to go at that time.

At the start of the hearing, the panel members will introduce themselves and the Judge will decide which side will give their evidence first, the Claimant or the Respondent. Both parties will then have an opportunity to cross-examine the other side and their witnesses; the Judge and panel members will also ask questions. Once all of the evidence has been heard, both parties can then make submissions, the summing up of their case and any relevant legal arguments.

How long the employment tribunal hearing takes will be dependent upon the complexity of the case. Tribunals try to limit the time that hearings take, and judges have the flexibility to manage proceedings as they see fit. Some cases are even settled before the actual hearing, others are straightforward and are decided on the day of the hearing, whilst a few more complex cases might take longer, depending upon the volume of evidence, number of witnesses and amount of cross-examination required.

You can still settle your claim even during the employment tribunal hearing. In fact, many cases will settle at this late stage depending on how the evidence goes for either party.

Once the case is concluded, the Judge and tribunal panel, if applicable, will adjourn to consider its decision. The tribunal may give its judgment orally on the day of the hearing or if the case is a complex one, the decision will be reserved and a written judgment sent out to the parties at a later date.

Who can attend an employment tribunal?

All parties and witnesses must attend the tribunal. Most hearings in the employment tribunal are held in public, which means that the press and members of the public are free to attend and listen to the evidence heard and the judgments delivered. For anyone interested in attending an employment tribunal hearing here is a list of employment tribunal offices and venues.

How long does an employment tribunal take?

The employment tribunal process should take 6–12 months from start to finish. Due to COVID-19 the service has faced closures and changes, so unfortunately, at the moment the employment tribunal system is struggling to cope with the volume of claims it has to deal with, so that timeline may be longer, perhaps up to a year for a case to be heard. Prior to COVID-19, the average time between starting a claim and receiving a decision was about six months.

This may appear to be a long period of time; however, the process involved with submitting an employment tribunal claim following any Acas early conciliation can be complicated and is formal.

It involves:

• Submitting a claim – You will need to download and complete the ET1 form. This will need to contain as much information about the claim as possible and then you submit it to the employment tribunal service. The time limit for bringing many tribunal claims is within three months of the date of termination of employment. For some claims, for example discrimination, the time limit may be within three months of the act complained about. Other claims, such as for a redundancy payment, have a six-month time limit.
• Acknowledgement of the claim – Once the claim has been submitted to the tribunal it will be given a claim number which is quoted on all future correspondence and will then be sent to the employer, now referred to as the Respondent.
• Response to the claim – The Respondent will then have 28 days to respond from the date the tribunal sends them the claim form.
• The next stages may include a preliminary hearing to explore the matter further or listing the case for the final full hearing. The tribunal offices send out instructions setting out the case preparation steps to make sure things happen properly and punctually; this is known as giving “directions”. Examples of directions include dates for exchanging lists of documents and witness statements. Directions also set out other relevant deadlines including the hearing date.
• Case management – There is now a period of time where both parties will need to prepare and attempt to agree to a list of issues and an agenda for the hearing. During this time the Claimant will need to confirm the financial value of the claim; this is called a schedule of loss. The parties will also need to disclose all relevant documents and agree the contents of the hearing bundle. This includes such documents as the pleadings, the documents/evidence which are relevant to the case, any policies and any losses documentation. Next, witness statements need to be acquired. Once all this has been prepared, then the final hearing preparation can take place including instructing barristers if required.

Once the case has been heard and a judgment made, both parties have the right to lodge an appeal and any appeal must be submitted within 42 days of the date the written reasons for the judgment were sent out. If there is no appeal lodged within that timeframe, then the case is considered settled.

What happens if you lie at an employment tribunal?

Being honest is always the best policy. At the employment tribunal, always give straight answers to straight questions and if you really don’t know the answer to a question, then say that you don’t know. You should always make sure that you fully understand the question before answering; don’t be afraid to ask for clarification if you need it.

Giving evidence at an employment tribunal is the same as giving evidence at any court, you are giving that evidence on oath. If you are found to have lied, it is perjury. If anyone wilfully makes a statement that they know to be false or that they do not believe to be true, and that statement is material to the legal proceedings, that is, if it is likely to affect the outcome of the employment tribunal, then they are guilty of perjury.

Perjury is a crime, and a matter for the criminal courts rather than for the employment tribunal or even for the civil courts. For anyone convicted of perjury, the penalty is imprisonment for up to seven years, or a fine, or both. If convicted, the person will then have a criminal record.

Another form of lying at an employment tribunal is presenting faked or altered documentary evidence. Anyone found to be submitting faked or altered documents, can be found to be perverting the course of justice during employment tribunal proceedings.

This is also a crime and would be a matter for the criminal courts. Anyone found guilty of perverting the course of justice would be liable to either a prison sentence or a fine, or both, and would also receive a criminal record.

In both cases, it is highly likely that the person who has been found to have lied or submitted fake or altered documents would lose the case and they would also be liable to pay the costs of the other party.

Appealing an employment tribunal hearing

To appeal the employment tribunal hearing decision, it is not enough that the Claimant or Respondent is unhappy with that decision. There are strict rules governing the submission and consideration of appeals. The Employment Appeal Tribunal’s (EAT) role is to ensure that the law was correctly applied and they will not usually deal with questions of the facts.

Either party, Claimant or Respondent, can appeal to the EAT if they believe a legal mistake was made by the employment tribunal when it reached its decision.

You may be able to submit an appeal if you believe that the employment tribunal:

• Got the law wrong.
• Did not apply the correct law.
• Had no evidence to support its decision.
• Was unfairly biased towards one party.
• Did not follow the correct procedures and this affected the decision.

In order to appeal you will need to ask the employment tribunal to provide written reasons for its decision, if these have not already been provided. They will then need to submit a notice of appeal to the EAT, normally within 42 days of the decision.

The EAT will carry out an initial review of the notice of appeal – this is known as the sift stage – and they decide whether it meets the criteria to proceed with an appeal, or whether it should be rejected because there are not adequate grounds to appeal.

If it can proceed, the EAT will set directions for the preparation of the appeal case and an appeal hearing will be arranged.

Either party, Claimant or Respondent, can continue to appeal to the higher courts if there continues to be a dispute on a point of law and the EAT agrees that permission to appeal should be granted. In this case, appeals will be submitted next to the Court of Appeal and finally to the Supreme Court. This ordinarily only occurs on new points of law.

Employment tribunal powers

If the employment tribunal reaches a decision in favour of the Claimant, depending on the type of claim, the tribunal can award:

• Reinstatement, that is, the Claimant gets their job back.
• Re-engagement, that is, the Claimant returns to the organisation in a new role.
• Compensation.
• Payment of wages or monies due to the Claimant.

Reinstatement and re-engagement are rare.

The amount awarded to a Claimant will be dependent on the type of claim that has been heard and other factors such as your earnings before you were dismissed, and if you have since found a new job. In cases of unfair dismissal, compensation will be made up of a basic award, which is a fixed sum calculated to a statutory formula, similar to that of a redundancy payment, and a compensatory award. The purpose of an award is to compensate you for the actual money you have lost as a result of being unfairly dismissed.

The maximum amount that can be awarded as compensation for unfair dismissal is currently capped at £93,878 or 52 weeks’ gross salary, whichever is the lower, but you are expected to mitigate your loss as far as possible and any new earnings will effectively be deducted from any compensation awarded. This is in addition to the basic award which can be ordered by the tribunal, which is a minimum of £6,959.

In cases of discrimination, there is no limit on compensation and the aim is to put the Claimant into the position they would have been in had the discrimination not happened. Compensation can be made up of financial loss including earnings and injury to feelings; the latter is dependent upon the severity of the discrimination.

Section 124 of the Equality Act 2010 gives employment tribunals the power to issue recommendations where an individual has brought a successful discrimination claim against their employer.

The employment tribunal can recommend that, within a specified time period, the employer must take certain steps to reduce the adverse effect on the Claimant of any matter to which the tribunal proceedings relate. For example, a tribunal could recommend that the employer organise training for a manager found to have victimised the Claimant. The tribunal’s recommendation must benefit the Claimant personally, rather than the wider workforce or job applicants in general.

In 2020, the Law Commission recommended increasing the powers for employment tribunals, to improve how tribunals operate and to enhance the protections that employees and workers receive from the tribunals against discriminatory and unlawful practices.

Their recommendations, which are yet to be accepted or implemented, include:

• Increasing the powers of employment tribunals so that they can decide claims of breach of contract brought by employees and workers while they are still employed.
• Increasing the time limit for bringing all types of employment tribunal claims to six months, currently it is three months for some types of claim.
• Giving employment tribunals the power to give damages in breach of contract claims of up to £100,000, currently the limit is £25,000.
• Allowing tribunals to hear complaints by employees that they are working hours in excess of the maximum working time limits.
• Improvements to the procedures for enforcing employment tribunals’ awards to ensure employees receive the compensation in a timely fashion.

Final thoughts

You must tell Acas first before making a claim to an employment tribunal about a workplace dispute. Acas is not part of the tribunal service and will not discuss any matter with the tribunal. If you feel that you might have a claim, they can be contacted on their helpline 0300 123 1100.