UK: Employment Tribunals

Last Updated: 29 October 2009
Article by Karl Limpert

The slightest mention of employment tribunals worries most small businesses, but with a little research & understanding there is often nothing to fear. It's important you don't ignore the issue, but rather take action promptly, as the progress and direction a claim follows will be determined against tight deadlines and the actions taken by both the employee (the Claimant) & the employer (the Respondent).

What to do First

Planning your defence to an employment tribunal claim is important, and this should be started as soon as you are aware of a claim lodged against you. The ET3 form will be the main document to set out any defence, and it's therefore important this is completed in sufficient detail (the reasons why are explained below) and returned in time: 28 days from the date the form was sent to you (not 28 days from date of receipt!).

A few steps to take immediately:

  • read the ET1 claim form carefully, and make sure you understand the detail of the complaint made against you;
  • think about why you resist the claim – what it is you disagree with & why;
  • draft some clear notes of how you expect to defend the claim;
  • don't be deterred on the detail of your defence due to the size of the boxes (5.2 on the form) – if the main detail of the defence can be structured briefly & included in this box that will be fine. If, however, you consider more details should be provided it is perfectly acceptable & common practice to write "see attached" in the box and provide a separate document headed "Grounds of Resistance" or something similar (this practice should not to be confused with "Other Information" box 6.1, as this is for other more general information, not the grounds on which the claim is resisted);
  • the basis of your resistance needs to give a clear picture of why you think the claim should be rejected, but does not need to provide a story of events that led up to the action being complained about – the relevant parts of this information will normally emerge in witness statements;
  • don't worry too much about the law now, and certainly don't stuff out the response with legal reasons why the claim should be resisted. The tribunal will align the facts to the law, and there'll be plenty of opportunity to suggest in law why the claim should fail, but this is not the time or place for that;
  • get some professional advice immediately - you do only have 28 days to complete this, and while you will find plenty of information here that can help you prepare for an employment tribunal, it will be easier & more helpful to your case to get your ET3 completed & filed professionally. Employment Law Clinic could be working on your case within 24 hours of you contacting us, so call 020 3239 0569, or see our contacts page for more options;
  • most importantly, don't delay taking action, and if there is simply a threat of a claim in the future (a solicitor's letter might state "our client has instructed us to file an ET1 if the matter is not resolved..." or something similar), give this your full attention – avoiding a claim altogether is much easier & cheaper than defending a claim successfully.

From Completing ET3s to Judgments & Beyond

For employers in receipt of an ET1 (the claim form an employee or other person will have filed against you) & ET3 (the form you'll need to return to have any chance of defending the case), there is no time for delay – a legal claim has been lodged against you, and it's important you submit a defence to this. The basis of your defence will be presented in this ET3 form, and time needs to be taken to ensure this is as accurate, comprehensive, & complete as possible.

Employers have 28 days from the date an ET3 was issued to file a completed response; a request can be made to extend the time limit, and this may be approved by an Employment Tribunal Judge if you have a good reason for the request, but it is strongly advisable not to delay preparations of your response unnecessarily – there is no guarantee any request will be approved.

A failure to submit an ET3 within the time limit will normally lead to a default judgement against you – the tribunal will assume that you have decided not to resist the claims, and they will therefore accept the claim as submitted.

There will be more to the process after a default judgement – the matter of awards will be determined at a further hearing – but if the employer has not filed an ET3, they will not be permitted to take any further part in the tribunal process at all.

If you need help completing an ET3, you've found the help you need. With the Employment Law Clinic, you can leave the complexities of responding to an employment tribunal claim to us, or simply receive advice on what your most appropriate actions will be.

For those employers that have failed to file an ET3 in time, with a default judgement entered against you, it can still be possible to get this set aside & get a defence in to the claims. This is not something done easily, and employers are advised to seek professional assistance in trying to deal with this matter, so get in touch urgently to get the support you need.

The employment tribunal process can be slow & tedious, with many supplementary events to attend to before the main hearing. Pre-hearing reviews, Case Management discussions, declaration of documents to be relied upon, the preparation & exchange of the bundle (the collective documents the parties will be using in the case), completion of a schedule of loss, the preparation & exchange of witness statements, and ACAS conciliation are all typical areas that need to be dealt with before you even get to an Employment Tribunal hearing. And of course, the completion of these will be required to a strict & tight timetable.

Even when a case is finally concluded & a judgment is sent to the parties, the case may not be over: employees (or employers, if your defence was not good enough) may appeal against the decisions of the tribunal. Alternatively, the employee may pursue legal action in the County Court to enforce payment of any award. Professional advice is always advisable to handle these procedures.

Whatever stage you are at, the Employment Law Clinic can assist you – although the sooner you contact us, obviously the better the assistance we can offer. We guarantee to reply to any urgent contact within 24 hours, and we will normally be ready to start work on your case immediately you instruct us.

Avoiding Employment Tribunals

For too many small businesses, the start of an employment tribunal defence is assumed to be the filing of an ET3 – the form you'll be sent when an employee files a complaint against you.

In fact, an appeal to a tribunal is (or at least should be) often preceded by a disciplinary procedure, or will be influenced by other actions you have taken. Getting these steps right will significantly influence any outcome of a tribunal – or influence if a case is even brought. Whenever possible, any employer unsure of how to handle a disciplinary procedure should get advice at that stage, and aim to avoid the inconvenience of an employment tribunal at all.

For comprehensive support in your business, Employment Law Clinic is available to check your employment contracts & other policies, draft new policies or procedures that will assist you in getting the appropriate return from your employees, and assist you when things do go wrong. Discussing your business needs & how we can help you ensure your staff contribute to your goals while avoiding all but the most frivolous tribunal claims only requires a phone call, so get in touch now.

Our Experience

Karl Limpert leads our advocacy services, and has been involved in employment tribunal cases for more than 15 years. Our experience also extends to dealing with cases in the County Courts (the courts that will enforce a financial judgement of an employment tribunal, useful experience as employers may have reasons to resist awards being enforced before the case is finalised), and the Employment Appeals Tribunal (a superior court of record, that will consider appeals against Employment Tribunals - although appeals are generally only permitted on points of law).

In our experience, we have represented both claimants (employees) and respondents (employers) successfully, although our services here are only available to employers.

While some competitors cherry-pick their cases, and either decline to handle clear losers, or arrange a quick settlement, ensuring cases that go to a hearing have a good chance of success, we will take instructions on any case – although we always encourage our clients to consider our advice on how to proceed. As the client will ultimately decide how a case is progressed though, we cannot always ensure the most suitable outcome is reached, so we don't try to pretend we win all cases. However, we've never had a complaint, or claim for negligence made against us, and we remain confident we have a good record, one that you can trust.

About Employment Tribunals

An Employment Tribunal is a type of court, and failure to follow its orders could lead to a finding of contempt of court, a fine, and even a custodial sentence.

The panel is independent, and typically made up of an experienced employment lawyer (the Chairman – known as an Employment Judge), an individual nominated by an employer association, and another by the trade unions (together known as lay members). While the Chairman is identified, the background to the other panel members is not normally disclosed to the parties at a hearing. Despite their different backgrounds, and perceived interests, the vast majority of judgements in employment tribunals are unanimous. For some hearings, the Chairman can sit alone. And equally, if a lay member has been indisposed, a hearing can proceed with only a Chairman & one lay member; these cases will proceed subject to the agreement of the parties.

Employment tribunals are intended to be less formal than higher courts, and therefore there is no special dress code required. However, it is recommended that any attendees dress in a smart & sombre fashion, at least to show due respect to the court.

Parties to an Employment Tribunal – referred to as the Claimant (normally the employee) and Respondent (normally the employer) can represent themselves, or instruct anyone to present the case on their behalf.

Once your case has been allocated a hearing, the first thing most employment tribunals will do is read through parts of the bundle – the documents that will be before the tribunal. To get a clear idea of the case, the tribunal will normally read the ET1 (the employee's claim) and the ET3 (the employer's response) first. It's therefore important your response is clearly set-out so the tribunal will have an idea of why you resist the claim – your evidence at the hearing will be intending to support what you said in the ET3, and this is what the panel will be expecting during the course of the hearing.

Witnesses give their testimony & response to any questions under oath, although the "witness stand" constitutes nothing more than an isolated desk near the front of the room. A good Chairman will generally help to put a nervous witness at ease, and will control the questioning if this is unreasonable, or simply aimed at the vulnerability of the witness.

If time allows, judgements will be often given on the day (if the case is concluded in one day) or last day of the hearing, but where this is not practical a decision will be posted to the parties. Judgements can be given in either summary or full formats, the former simply mentioning the key points of the case, and the principal findings of the Tribunal, while the latter gives more detail for a case, and can be useful to determine whether an appeal should be pursued.

There are circumstances in which a review of a judgement (the Panel reconsiders its decisions, and may change any part of these) can be requested, but the grounds for this are limited, and a final decision on whether a review should be conducted by the Tribunal will be made by the Chairman alone, before the case even goes back to the full Panel.

The Employment Tribunals Service publishes statistics annually covering the number, type, outcome, and other details of all cases filed with it. The statistics will show that most employers are successful in defending claims against them, but this can give a misleading impression to employers: the cases where the employer could generally be expected to lose will have been settled out of court, typically including a gagging order restricting the publication of the settlement.

In general, despite government efforts to reduce the number of claims submitted to employment tribunals, the trend has been towards a greater number of complaints filed in recent years.

Default Judgements

A default judgement can be issued by a Chairman in cases where a complaint has been filed, and the respondent has not presented a response to the Employment Tribunal Office within the relevant time limit. An application may be made to have these judgements reviewed, although the details to be filed are comprehensive, with a time limit of 14 days from the date the judgement was sent to the parties.

Any application for a review of a default judgement must include the reasons why the judgement should be varied or revoked; and include the respondent's proposed response to the claim, an application for an extension of the time limit for presenting the response, and an explanation for the delay.

A default judgement does not include a decision on remedies, which will normally be dealt with at a later hearing. Although the respondent will be able to sit in the public area of the hearing, they will not be permitted to take any part in the hearing.

It is therefore important to ensure any claim is responded to within the limits prescribed in law, to avoid losing a case that could be defended successfully.

Jurisdiction – scope of cases heard by Employment Tribunals

The most popular types of claims made to employment tribunals include:

  • Unfair dismissal
  • Unauthorised deductions
  • Breach of contract
  • Sex discrimination
  • Working Time Directive
  • Redundancy pay

The more comprehensive list can be found in the reports available at: www.employmenttribunals.gov.uk/Publications/publications .htm

It is important for anyone reading the stats not to be misled by reading the figures selectively: in the year to March 2008, the number of unfair dismissal cases successful at a Tribunal is only 10% (a percentage based on all claims made, even those settled or withdrawn). This statistic in insulation hides the fact that more than a third (37%) were settled with ACAS conciliation, and nearly a third (32%) were withdrawn - which would often be due to a private settlement; in both cases there will normally be costs to the employer. In fact, only 19% of claims filed were unsuccessful at a hearing, so with the trend for claims increasing, employers should consider putting more effort into avoiding a tribunal claim at all.

Value of Awards

The value of any award made by a tribunal will vary according to the nature of the case. The amount of some awards are determined by law, although even these may have some influence of the tribunal – in certain circumstances, the tribunal can increase or decrease parts of an award by as much as 25%.

Then there are awards that have to be calculated with some speculation influencing them: if an employee successfully wins a claim for unfair dismissal, and is still unemployed at the time of the hearing, the tribunal will have to speculate how much longer they may be out of work, and make an award accordingly; employers could also be liable to the government, for the cost of benefits claimed, in these cases.

While the law doesn't permit an award for "injury to feelings" in most cases, discrimination cases can attract awards for these, at the discretion of the tribunal. The tribunal also has complete discretion on the amount to award in discrimination cases, so cases involving discrimination invariably attract higher awards against the employer.

Employment Tribunal Offices

Any cases will normally be assigned to the Employment Tribunal Office covering the post code of the workplace. The offices are spread across the UK, with details available from the Employment Tribunals Service.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.