If you have had a disagreement with your employer about the way that you have been treated, then they should have followed any relevant procedures referred to in your contract or employee handbook. If they did not do so, or you have not been able to reach a satisfactory conclusion directly, then your next option might be to take your dispute to an employment tribunal.
Sometimes bringing a claim is the only way for workers and employees to assert important legal rights. In this article, we outline the process, how we can help, and offer some key pointers if you are thinking of bringing a claim.
Types of employment dispute which will be considered by a tribunal
An employment tribunal is able to consider and make a legally binding decision in regard to a wide range of issues, including:
- disputes around equal pay or deductions from wages;
- claims of unfair dismissal, such as if you had to resign because your employer breached the contract of employment or if you were made redundant and the process was unfair; or
- if you have experienced discrimination in regard to a protected characteristic such as disability, sex, race, age, sexual orientation, gender reassignment, marriage or civil partnership, pregnancy and maternity, religion or belief.
Most employment disputes are handled via the tribunal system but sometimes it is necessary to bring the claim in a court. Our solicitors can advise you on your particular circumstances.
Who can make a claim?
Depending on the nature of your dispute, you may be able to bring a claim if you are:
- a prospective employee, for example if an advert or recruitment process was discriminatory;
- employed and still in employment; or
- if you have been dismissed as an employee.
If you are a worker you do not have all of the same rights as an employee, but you can still make some claims, such as for unpaid wages.
Some people obtain work via the gig economy and operate as self-employed but may be a worker – for example, some Uber drivers obtained employment rights via the employment tribunal system.
This is a very complex area of law, and our solicitors will need to consider your particular circumstances.
When can you make a claim?
This will depend on the type of claim. For example, to bring a claim for unfair dismissal because your employer did not follow a fair redundancy process, you usually need to have worked for your employer for two years.
In some circumstances, you have the right to bring a claim from day one, such as if you were dismissed because you were pregnant or if you raised concerns about health and safety.
Timing is crucial. You must commence most claims within three months of the last date of employment, such as for an unfair dismissal claim or discriminatory harassment. A few claims, such as for equal pay, give you six months to bring a claim.
There are complex rules around when the clock starts ticking. In a few circumstances, the tribunal might allow your claim if it is late, but the key message is, do not delay speaking to our solicitors.
How do I start a claim?
Other than for very few exceptions, tribunals will not accept a claim unless Acas have already been notified of the dispute. Before starting your claim, we can contact Acas on your behalf to start a process called ‘early conciliation’. This process gives you and the employer up to six weeks to try to reach an agreement through Acas to avoid a claim going to tribunal. We can liaise with Acas on your behalf so there is no need for you to deal directly with Acas.
Either you or your employer can choose not to engage with the Acas process. The early conciliation process effectively ‘stops the clock’ for bringing your claim.
Acas will give you a reference number that you need to include in your claim (the ET1 form).
What happens after my claim has been submitted?
It is best to use an experienced solicitor, as the tribunal has the right to reject a claim which has not been completed correctly or in time.
If the claim is accepted, the tribunal will send your claim to the respondent (the employer or ex-employer). They will have 28 days to send a response to the tribunal, setting out their defence.
The tribunal will set dates for when steps must be taken to get the case ready for a hearing, such as agreeing the documents that the tribunal will consider (known as the bundle) and exchanging witness statements. The tribunal may arrange preliminary hearings if there are more complex issues to be decided or to clarify the issues in the case.
What happens at the tribunal?
Some cases are heard by just an employment judge. More complex cases are dealt with by a judge and two lay members. One lay member usually has a trade union background and the other will be experienced in management or human resources.
The tribunal will examine the bundle of documents, which usually contains emails, notes, policies, contracts and printouts of texts.
The tribunal will read the witness statements and you may also be asked to read your statement out loud. The respondent or their representative can ask you questions. This is known as cross-examination and can be a challenging experience, although the tribunal will intervene if the questioning is not appropriate.
The tribunal is very likely to ask you questions too. We can support you to be as well prepared as possible.
You will have the right to question the respondent’s witnesses. Again, the tribunal is likely to question them.
You may not get the tribunal’s decision on the day, particularly if there is little time left on the final day of the hearing or the case is complex.
What happens if you win your case?
The tribunal may need to set up a separate hearing to decide if and how much compensation the respondent has to pay you. This will depend on the individual circumstances of your claim. For example, if you are claiming loss of earnings because you were dismissed, you need to show that you have tried to find a new source of income. You should keep records of any benefits you have claimed and show the steps you have taken to find new work. The respondent may try to show that you have not tried hard enough, for instance by producing adverts for suitable jobs. If you are claiming injury to feelings, you may need to provide a letter from your doctor.
Compensation can be reduced, for instance if the tribunal finds that you contributed to your dismissal. There are limits on the level of compensation for unfair dismissal. Compensation for discrimination is unlimited but awarded in line with guidance, according to the severity. In rare cases, the respondent may have to pay you costs.
What happens if you lose your case?
All tribunal decisions are accessible on an online register and searchable against your name. You may not want this to be a matter of public record.
In rare cases, you may have to pay some of the respondent’s costs, for instance, if you dealt with the case in an unreasonable way.
It is possible to appeal the decision of the tribunal for certain specific reasons.
How we can help
Further information is available about the employment tribunal rules and processes here. We can advise you on whether you have a case that is worth bringing in the employment tribunal, and if you do then we will represent you and support you every step of the way.
Please contact our employment team on 01732 770660 or email [email protected]. Warners has offices in Sevenoaks and Tonbridge in Kent.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.