What is an Employment Tribunal?

An Employment Tribunal is a legal body that resolves disputes between employers and employees – it is intended to be more informal than the civil courts, but it still has legal authority to make binding decisions on employment-related cases under its jurisdiction.

Employment tribunals handle a wide range of cases, including (but not limited to):

• Unfair dismissal
• Constructive dismissal
• Discrimination, harassment, and victimisation
• Breach of employment contract
• Unlawful deduction from wages and holiday pay

Understanding the purpose and function of employment tribunals is essential for employees who may need to assert their rights in the face of workplace issues.

Common types of Employment Tribunal claims

Employees may bring claims to an employment tribunal for several reasons, such as:

Unfair dismissal

If an employee’s employment is terminated without a fair reason or proper procedure, they may have grounds for an unfair dismissal claim.

Examples of successful unfair dismissal claims include (among others) dismissals without prior warning, where the employee has been refused an appeal against their dismissal, where the employer has failed to investigate allegations of gross misconduct, where the employer has failed to allow an employee to improve their workplace performance under a performance improvement process, or where an employer has failed to undertake a redundancy consultation process.

Employees need to have two years’ continuous employment to make a claim for unfair dismissal (although that it is likely to change soon, and to become a ‘day one’ right, under the Employment Rights Bill currently going through Parliament).

Constructive dismissal

If an employee resigns from their employment because of a serious breach of contract on their employer’s part then they may have a claim for constructive dismissal. Common examples of constructive dismissal claims include: where an employer fails to pay an employee’s wages; where an employer pre-judges the outcome of a disciplinary or performance improvement process and tells the employee that they’re going to be dismissed; and where one employee strikes or abuses another employee in the workplace.

Employees also currently need two years’ continuous employment to bring a claim for constructive dismissal in the Employment Tribunal.

Discrimination

Employees facing unfair treatment due to their age, gender, race, disability, or other protected characteristics can file a discrimination claim under the Equality Act 2010.

Employees are also protected against harassment (including sexual harassment) and victimisation in the workplace.

Wage disputes

Claims for unpaid wages, holiday pay, or unlawful deductions from salary are common. Employees have a right to be paid for work performed, including accrued entitlements.

Breach of contract

Employees can bring claims in the Employment Tribunal for breach of contract where the breach of contract is outstanding upon termination of their employment – this could include, for example, a failure to pay bonus or commission due, or a failure to pay the employee their full notice pay.

Claims for breach of contract in the Employment Tribunal are capped at a value of £25,000.

The Employment Tribunal Process

The Employment Tribunal process involves multiple stages, each crucial for succeeding with your claim:

1. ACAS Early Conciliation

Before issuing an Employment Tribunal claim, employees must complete the Advisory, Conciliation and Arbitration Service (ACAS) Early Conciliation process – early conciliation is, essentially, an attempt to put the employee and employer in contact so that they can have settlement discussions.

Further reading: ACAS Early Conciliation

If there is a negotiated settlement via ACAS Early Conciliation then ACAS will provide a draft COT3 agreement to the parties reflecting agreed heads of terms, and once this is signed the employee will be prevented from pursuing an Employment Tribunal claim.

If there is not a negotiated settlement via the ACAS Early Conciliation process then ACAS will issue a certificate to the employee, allowing them to bring a claim in the Employment Tribunal (there are certain circumstances in which an employee does not need to obtain a certificate to bring an Employment Tribunal claim, but these are very limited and in almost all cases an employee should obtain a certificate).

2. Submitting a claim

If early conciliation does not result in a settlement, employees can submit a claim online using an ET1 form. The claim must be filed within strict time limits, usually three months less one day from the incident in question, adding on any period of time spent in ACAS Early Conciliation.

3. Employer’s Response

Employers have 28 days to respond to the claim using an ET3 form. They may accept, deny, or partially accept the allegations and can, if you have made a claim for breach of contract, make a counter-claim.

Their response will shape the subsequent Employment Tribunal  proceedings.

4. Employment Tribunal directions

The Employment Tribunal will issue directions to the parties, normally once the ET3 form has been submitted – “directions” are, essentially, what the Employment Tribunal wants the parties to the litigation to do prior to the full merits Employment Tribunal hearing and when these things should be done – this includes, but is not limited to:

• Whether, and when, a preliminary hearing should be held;
• When disclosure should take place (i.e. the parties sending each other documents relevant to the claim that are in their possession);
• When a schedule of loss should be created and filed;
• When witness statement exchange will take place

Sometimes the Tribunal will direct that the parties should engage in judicial mediation or judicial assessment of a claim.

5. Preliminary hearing

Some cases will need preliminary hearings to be held – these are, essentially, hearings to deal with specific points of law or to create/administer the timetable for the claim. There are, broadly, two types of preliminary hearing:

• Case management – these hearings generally deal with creating and/or administering the timetable for the claim, as well as allowing the Tribunal to understand the claim that is being made and what the defence is (and amend/clarify it, if necessary)
• Substantive – these hearings generally deal with specific points of law and arguments being made by either party. Substantive preliminary hearings will deal with, among other things: applications by the parties to anonymise identities; applications to strike out claims or defences; applications for costs etc.

6. Full merits hearing

The final merits hearing’s purpose is to put all of the evidence, both documentary and witness, in front of the Employment Tribunal, and for witnesses to be cross-examined (i.e. asked questions) by both the legal representatives and the Tribunal.

At the conclusion of the hearing both parties will make ‘submissions’ (i.e. their arguments as to why they should win, based on the law and taking into account the relevant evidence) and the Employment Tribunal will then make a decision on the outcome of the claim.

7. Employment Tribunal decision

The Employment Tribunal may issue its decision immediately or reserve it for a later date. If issued immediately, the Tribunal may just give its decision verbally and record the outcome in brief in a written judgment or, alternatively, it can also give full written reasons (the parties are always entitled to request written reasons, if they wish).

The written judgment will outline the outcome of the claim and any compensation awarded.

Time Limits for Bringing a Claim

Time limits vary based on the nature of the claim – examples are included below:

• Unfair dismissal: three months less one day from the dismissal date
• Discrimination: three months less one day from the incident
• Breach of contract: three months less one day from the effective date of termination (or, where there is no effective date of termination, three months less one day beginning on the day on which the employee last worked)

The time limit may be extended following participation in ACAS early conciliation.

Employees must act promptly and seek legal advice to avoid missing these crucial deadlines.

The Government is currently considering introducing legislation extending the time limits for certain types of claims.

Preparing for an Employment Tribunal

Thorough preparation is essential for a successful tribunal experience.

Gathering Evidence

Collect and organize all relevant documents, including (but not limited to):

• Employment contracts
• Emails and correspondence
• Audio recordings/transcripts, notes of meetings
• Payslips, job applications, and documented efforts that you’ve made to find new employment
• Details of benefits received post-termination of employment
• Witness statements

Ensure that your evidence is well-structured and clearly supports your case.

Understanding your legal rights

Familiarize yourself with employment laws related to your claim. For example, the Equality Act 2010 protects employees from discrimination, while the Employment Rights Act 1996 governs unfair dismissal claims.

Seeking legal advice

Consulting a solicitor or employment law expert can provide significant advantages. They can advise on your legal position, draft necessary documents, pressure your employer to try and settle your claim, and represent you at the hearing.

Tips for Presenting Your Case

Stay professional

Maintain a respectful and calm demeanour throughout the process, even when facing challenging questions and arguments.

Stay focussed

Only raise facts that are relevant to the claims that you are making, and only bring claims that can be supported by evidence. Keeping the claim as lean as possible, while addressing all the claims that you wish to make, will help the other side and the Employment Tribunal best understand the case that you are making as well as what evidence supports it.

Be clear and concise

Gather the relevant documentary and witness evidence to try and prove the facts relevant to your claim.

Present your evidence logically, focusing on key facts, key legal arguments, and supporting documentation.

Prepare for Cross-Examination

Expect questions from the employer’s representative and practice responding confidently. Keep any answers relevant, but don’t be afraid to say that you don’t know the answer to a question (if you don’t). Credibility is very important in the outcome of a full merits Tribunal hearing.

If you’re representing yourself then take care to prepare cross-examination for the other side’s witnesses – make sure you understand the facts that these witnesses are stating and how they’re relevant to the other side’s case. Prepare questions to try and expose inconsistencies in the evidence that the other side are putting forward and to help you put the best case forward.

Possible outcomes of an Employment Tribunal

The Employment Tribunal can, whether before or at a full merits hearing:

• Uphold the employee’s claim(s) (and award compensation as well as other measures)
• Dismiss the claim

Compensation can potentially cover, depending on the nature of the claim being brought:

• Past and/or future loss of earnings
• Damages for breach of contract
• Injury to feelings (in discrimination, harassment and victimisation cases)
• Uplifts or decreases to compensation (for example, an uplift to the compensation if the employer has unreasonably failed to comply with the ACAS Code of Practice on Disciplinaries and Grievances)

Employment Tribunals can also make declarations and recommendations.

Alternatives to Employment Tribunal proceedings

Conciliation

As above, the parties can discuss settlement via ACAS Early Conciliation.

Mediation

A neutral mediator facilitates discussions to help both parties reach a mutually acceptable solution. Mediation is relatively rare in Tribunal proceedings, however.

Settlement Agreements

Employers may offer settlement agreements to resolve disputes without proceeding to a tribunal. These agreements typically include financial compensation and other terms.

When should you seek legal advice?

Capable employment lawyers will have substantial experience in dealing with Employment Tribunal litigation, and can be very useful to litigants.

It is always recommended that parties to Employment Tribunal claims seek legal advice from expert and experienced lawyers in order to improve their prospects of success with bringing (or defending) claims – they can help as they are experienced in dealing with complex Employment Tribunal litigation, know what evidence to gather and what arguments to make, and have familiarity with Tribunal procedures.

Solicitors can help assess the strength of your case, prepare evidence, and negotiate settlements.

FAQs about Employment Tribunals

What happens if I lose my case?

If you lose, you may not receive compensation. However, costs are rarely awarded against employees unless certain circumstances apply.

Can I represent myself?

Yes, many employees represent themselves at tribunals. However, legal representation can increase your chances of success.

How long does the process take?

The duration varies but can range from several months to over a year, depending on case complexity, the availability of parties, and Tribunal schedules.

What costs are involved?

The Employment Tribunal is, generally, a ‘no cost’ jurisdiction, so the parties to the claim generally bear their own costs. There are exceptions to this, however, where the Employment Tribunal may award costs (e.g. if the claim was vexatious or misconceived, among other reasons) – costs award in Tribunal claims are, however, rare.

There are no court fees payable, currently, in Employment Tribunal claims.