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: .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.

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