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Employment Tribunal: Bringing or Defending a Claim

EM Law are experts in advising clients on bringing and defending claims in the employment tribunal. Our employment law team have partner-level experience from leading City and national firms as well as in-house experience from global businesses. We act for employers as well as employees.

Acas early conciliation

Other than in limited circumstances, all those who bring claims in the employment tribunal (claimants) must complete Acas early conciliation before the tribunal will accept their claim. Early conciliation will usually involve an Acas conciliation officer attempting to promote a settlement between the parties. Generally, this will involve the claimant (or their adviser) either submitting an early conciliation form online or by post, or telephoning Acas who will complete the early conciliation form for them.

If the claimant wishes Acas to attempt to facilitate a settlement, Acas will try to contact the person who the claimant is bringing a claim against (the respondent). Acas will seek to negotiate between the parties for up to four weeks (which can be extended by two weeks). If Acas is unable to broker a settlement, it will issue an early conciliation certificate. The claimant will need to add the number of their early conciliation certificate to their claim form.

If the claimant does not wish the respondent to be contacted or a settlement to be negotiated, Acas will simply issue an early conciliation certificate and the claimant can proceed to issue their claim.

Presenting the ET1

A claimant must use the standard form ET1 form to present a claim to the employment tribunal. The ET1 is available to complete or download from the Justice website.

If the ET1 is not presented clearly and succinctly, the claim may be rejected or weeded out at the “sift” stage. Therefore, it is important to present the claim in a clear and well-reasoned manner and to include sufficient detail to enable the employment tribunal to understand the issues in the case and for the respondent to understand the case it has to answer.

Fees are no longer payable to the employment tribunal in order to submit a claim.

Acceptance or rejection of the ET1

When a claim is received at the employment tribunal it will initially be considered by the administrative staff of the tribunal office who will check whether:

  • The prescribed form has been used.
  • The form contains the required information.
  • It is outside of the tribunal’s jurisdiction.
  • It is in a form which cannot sensibly be responded to.
  • It is otherwise an abuse of process.

If the claim is accepted in full, the tribunal will send through a copy of the ET1 to the respondent, together with a form ET3 for completion.

If the claim (or part of the claim) is rejected for one of the five grounds above, the tribunal will send the claimant a notice of rejection explaining the grounds for rejection and how to apply for a reconsideration, if applicable.

Receipt of the ET3

The respondent will have 28 days from the date the claim was sent out to it to present its response to the employment tribunal (using form ET3) unless it successfully applies for an extension of time. The tribunal will send a copy of the ET3 to the address of the claimant’s representative given on the ET1.

When the respondent does not present an ET3

If the respondent does not present an ET3 within the 28 day deadline or apply for an extension of time to do so, the employment tribunal has a wide discretion as to how to proceed. This ranges from entering a full default judgment for liability and remedy against the respondent to holding a hearing to decide the appropriate course of action.

Sift stage

Once the respondent has submitted its response and it has been accepted, the case will be passed to an employment judge who will consider the claim and response and decide from the papers:

  • Whether the claim or response should be struck out, either in full or in part, because it has no reasonable prospects of success.
  • Whether the claim should be struck out, either in full or in part, because it does not contain complaints within the jurisdiction of the tribunal.
  • If the case should proceed, what case management directions are required to get the case ready for final hearing.

If the employment judge decides that all or part of the claim or response should be struck out, they will write to the parties setting out their views and the reasons for them and explaining that the claim or response will be dismissed on a specified date, unless the relevant party writes to the tribunal setting out the reasons why their claim or response should not be struck out before then. After considering the party’s representations, the judge will either allow the claim or response to proceed, or hold a hearing to decide whether to do so.

Case management orders

Case management directions are typically issued by the employment tribunal:

  • When it accepts the claim.
  • After an employment judge has reviewed the pleadings at the sift stage.
  • At a case management preliminary hearing.

Preliminary hearings

A preliminary hearing is an interim hearing that may be called by the employment tribunal of its own motion or on the application of one of the parties. There are two main types of preliminary hearing:

To discuss administrative issues such as:

  • the further directions needed to prepare the case for final hearing; and
  • the issues in dispute that the employment judge will need to determine at the final hearing.

To determine preliminary issues, including:

  • whether the claim or response, in full or in part, should be struck out; and
  • whether a deposit order should be made.

Case management preliminary hearings

A case management preliminary hearing will typically be used to:

  • Clarify the issues the employment tribunal will need to determine at the final hearing.
  • Determine the steps the parties will need to take to prepare the claim for the final hearing.
  • Issue case management orders requiring steps to be undertaken.
  • Explore the possibility of settlement or alternative dispute resolution between the parties, including the options of judicial mediation and judicial assessment.

Disclosure and inspection

Both the claimant and the respondent will be under a duty to disclose to the other party and the employment tribunal all documents in their possession or control that are relevant to the issues to be determined in the proceedings, whether those documents assist their case, adversely affect their case, or assist the other party’s case.

A document is anything in which information is recorded, not just information on paper. This includes emails, databases, computer records, recordings of audio communications, text and instant messages and posts on social media such as Twitter and Facebook.

Witnesses

In most cases (although not in Scotland), the employment tribunal will direct that the parties prepare written witness statements setting out the evidence each witness will give at the final hearing. In many cases, the claimant’s own evidence will be sufficient. However, other witness evidence may be helpful concerning areas of dispute or allegations of which the claimant cannot give first-hand evidence.

Witness orders

If a witness is not willing to voluntarily give evidence at the hearing, a party can consider applying to the employment tribunal for a witness order compelling them to attend a hearing to give oral evidence or produce documents or information.

Exchange of witness statements

Once the written statements have been finalised, approved by the witnesses and signed, they are simultaneously exchanged between the parties on an agreed date in accordance with the tribunal’s order.

Expert evidence

In some cases, expert evidence will be required to assist the employment tribunal in determining an issue in the proceedings, such as whether the claimant was disabled at the relevant time. The tribunal usually prefers the parties to instruct a joint expert. Directions for the instruction of an expert are usually made at the case management preliminary hearing.

Schedule of loss

The employment tribunal will usually direct that the claimant provides a schedule of loss by a certain date as part of its standard case management directions. The schedule should then be updated up to and including the last day of the final hearing, when that date is known.

The schedule should set out the financial compensation the claimant hopes to achieve

Mitigation evidence

In most cases, the claimant will need to be able to evidence that they have taken reasonable steps to mitigate their loss, usually by looking for a new job if their employment has ended, and by limiting their out-of-pocket expenses to those which are reasonably incurred. The issue of whether the claimant has taken reasonable steps to mitigate is a question of fact for the employment tribunal, and the respondent has the burden of proving that the claimant has not done so, rather than the claimant having the burden of proving that they have. Documentary evidence of mitigation may include:

  • Job advertisements.
  • Job applications made.
  • Responses received.
  • Details of interviews attended and any additional training undertaken to assist with obtaining new employment.

Settlement

Most employment tribunal claims settle before the final hearing by the parties signing a settlement agreement.

The final hearing

Which party goes first?

The party that has the burden of proof will usually call their witnesses first. So, for example, in an unfair dismissal claim, the respondent will go first (unless there is a dispute over whether the claimant was dismissed), whereas in a claim of constructive dismissal or discrimination, the claimant will start.

The tribunal may, however, decide that it wants to hear from the other party first, and will often ask the respondent to start the evidence, particularly in claims where there are allegations of both unfair dismissal and discrimination, and therefore a mixed burden of proof.

It is customary for a party to give evidence ahead of other witnesses present on their behalf, although they can ask the tribunal to hear the evidence from another witness first if this is more convenient.

Opening submissions

The judge may want to hear a summary of the case or may simply wish to proceed directly to witness evidence.

Witnesses

All witnesses are required to give their evidence on oath or on affirmation.

 After the witness have given an oath or affirmed, they should be asked to confirm their name and address.

The witness should then be taken to their statement and asked to confirm that it is their statement, the signature at the end is theirs and the contents are true to the best of their knowledge.

The witness’s written statement will stand as their evidence-in-chief and will be taken as read, unless the tribunal or an employment judge orders otherwise.

The lawyer who called the witness may ask the witness questions that supplement the contents of the witness’s written statement. Once these questions are concluded the witness may be cross-examined by the opposing party’s representative.

Cross-examination

The witness will be asked leading and narrow questions from the other party’s representative to elicit evidence favourable to the other party and to attempt to highlight inaccuracies in their evidence.

Re-examination

If new matters arise during the cross-examination, the representative of the party on whose behalf the witness is appearing will have the opportunity to re-examine the witness, but only on those matters.

Tribunal questions

The tribunal judge or members of the panel (if applicable) are also likely to have some questions of their own for the witness, both during evidence-in-chief or cross-examination and at the end of the witness’s evidence.

At the end of those questions, the witness will be told that they can step down, and they can go back to their seat in the tribunal hearing room.

After giving evidence

Once they have finished giving their evidence, witnesses are free to leave the tribunal whenever they wish in the same way as any other member of the public.

Amendments

It is not uncommon for a party to request an amendment to their claim or response at the outset of the hearing. Usually this will be a relatively minor amendment. However, the tribunal will still weigh up the balance of any injustice or hardship to the parties in granting or not granting the amendment.

A new cause of action

If an employment tribunal identifies and wishes to rule on a cause of action that has not previously been raised by either party or identified during a preliminary hearing, it might point this out to the parties and consider whether an adjournment should be allowed for them to take advice on the new issue, particularly if either party is unrepresented.

Closing submissions

Both parties make closing submissions once all the evidence has been concluded. The party who called their witnesses first will make their submissions last. Submissions are a party’s opportunity to summarise their case to the tribunal. In general, this is done orally, although the tribunal might ask for outline written submissions, or for full submissions to be made only in writing, particularly if evidence has overrun and there is no time to hear submissions before the end of the hearing.

Judgment and reasons

Judgment will be given either orally at the end of the final hearing or in writing and sent to the parties or their representatives. It is more common for the employment tribunal to reserve its decision and send out a written judgment at a later date.

How much is it likely to cost (bringing or defending unfair or wrongful dismissal claims)?

Please click on the link here to view our service and price information page.

For any questions you may have around bringing or defending a claim in the employment tribunal contact Helen Monson or Imogen Finnegan.

employment tribunal lawyers em law helen-monson    employment tribunal lawyers em law imogen-finnegan

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