Perhaps you are reading this article because you think you may have a claim against your employer, or maybe because you are an employer who has received a claim through the Employment Tribunal (ET). Either way, you have reached a point where you know that you will have to submit something to the ET, but do not know what to do next. Below we set out some key considerations and practical advice on how to proceed.
Although ETs have been specifically designed to allow access to justice for everyone, and therefore do not require claimants or respondents to be represented, there are numerous legal and administrative pitfalls that can catch an uninformed party out. For example, employees do not have to quote the law in their claim, but if the claim is about something which is not protected by law the ET will not have jurisdiction to consider it.
Having an adviser who is familiar with the law and the tribunal process can ensure that things go as smoothly as possible, and can also ensure you know what you may or may not be able to achieve with the claim. They can also assist you with trying to negotiate a settlement. It should be noted that legal costs are rarely recovered by the successful party in an ET claim, so the decision to instruct a solicitor should always be weighed up against the value of the claim.
If you wish to bring a claim in the ET, you will have a set period of time in which to do so. In the majority of cases, this time limit is three months from the date of the act complained of (usually a dismissal or discriminatory act). Claimants must also first contact Acas to discuss Early Conciliation, and the time limit for submitting the claim will usually be extended by any period during which the parties have tried to settle through Early Conciliation.
Being even slightly over the time limit could result in the ET refusing to hear your claim – one claimant was unable to proceed with his claim as he had submitted it by email 88 seconds after the deadline. However, ETs do generally have discretion to extend the time limit where they consider that it was not reasonably practicable for the claimant to present the claim in time, or if it is just and equitable (in discrimination cases) to extend the time limit.
Respondents should also be aware of time limits. A respondent will usually be given 28 days to submit their defence, but if they fail to do so the ET can make a default judgment, a decision which is automatically in the claimant’s favour.
Since July 2013, all claimants have been required to pay ET fees unless they are eligible for a fee remission. Failure to pay the fees may result in the claim being rejected or dismissed.
The fees are split into two parts: the Issue Fee and the Hearing Fee. The Issue Fee is the initial fee paid when the claim form is issued in the ET. The Hearing Fee is payable later, usually a few weeks before the hearing. The level of these fees depends on the type of claim being brought, but will be either £160 or £250 for the Issue Fee and £230 or £950 for the Hearing Fee. Where there are multiple claimants bringing a group claim the fees are different, and the relevant amount will depend on the total number of claimants. Claimants may seek payment of the fees by the respondent(s) as part of their compensation.
Directions and Orders
Once the ET has received and accepted the claim, it will send the details to the respondent(s). In many cases they will at the same time issue a list of directions, which are instructions for the parties to do something (such as submit a Schedule of Loss or exchange documents), usually by a particular time. In some cases this will not be done automatically, but rather the ET may ask the parties to attend a case management discussion, at which the parties will attempt to agree how the case is to progress and dates for each step. Failure to comply with the ET’s directions or any other orders made by the ET may result in the claim or defence being struck out.
As part of the directions, the parties will be required to provide each other with a list (and subsequently copies) of any documents in their possession which are relevant to the issues in the case. These are not limited to documents which support your case, and must include documents which harm your own case or support your opponent’s case. It is therefore vital that documents are retained from the outset, ideally without making any notes on them.
Following disclosure, the parties will usually be required to agree which documents the ET will see at the hearing (known as the Bundle). In addition, the parties will be asked to provide any witness evidence in the form of a witness statement.
If you believe you may have a claim, or if you have received a claim, you should gather all of the relevant documents as soon as possible and speak to your potential witnesses; having an early written record of events will often be better than trying to remember things months down the line.
This article was first published on 13 October 2015 as part of our Employment Law Update series. Register above to receive our updates as soon as they are published, directly to your inbox!
This article is offered for general informational purposes only, and does not constitute legal advice. The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the views or opinions of Solomon Taylor & Shaw.