Responding to Employment Claims

‘Tribunal’ is just another name for a court. Employment Tribunals (ETs) are tasked only with determining the workplace related claims, set out in a defined list of legislation, including the Employment Rights Act (1996) and the Equality Act (2010).

Being a specialist court designed to help workers without the same resources as employers, ETs have some unique features:

1. The ET does not require any issue fee to be paid before a claim is presented, removing the financial barrier for workers wanting to access the justice system.

2. For similar reasons, win or lose, each party must normally bear their own legal costs (explained further below.)

3. Like any other court, an ET has a presiding Employment Judge but unlike other courts, an Employment Judge decides some cases with two lay representatives, forming what is known as an Industrial Jury.

4. To provide balance, one lay representative will be associated with an employee friendly organisation such as a trade union, and one will be associated with an employer friendly organisation, such as the CBI.

5. Finally, the ET’s procedural rules are applied with less stringency than in other courts, particularly when parties are unrepresented.

The person presenting the claim, (the ‘Claimant’) must satisfy the legal test to qualify as either an employee or worker (and there is a legal difference between the two). Even if they do qualify, there may be further legal criteria for them to meet before they are entitled to make a specific type of claim.

For example, a casual worker working a summer job is entitled to present a claim for unpaid wages or even discrimination, but they will not be able to present an ordinary unfair dismissal claim because they will not have been working for their employer long enough.

The genuinely self-employed do not generally qualify, however some are only self-employed on paper and are in fact employees in all but name. In those cases, they may be able to make a claim whatever their contract states.

• Unfair Dismissal

One of the most common claims presented to ETs is unfair dismissal. An unfair dismissal claim originates from a qualifying employee’s belief that they were (a) dismissed without one of the fair reasons detailed in the law, for example, misconduct or redundancy, and/or (b) a fair dismissal procedure was not followed.

• Breach of Contract

Disputes related to the breach of employment contracts are also within the jurisdiction of ETs. These can encompass issues such the non-payment of either contractual notice monies or contractual bonus.

• Equal Pay

ETs address claims related to equal pay, ensuring that individuals are receiving equal pay for equal work.

• Discrimination

Discrimination claims cover unlawful mistreatment because of, or connected with, individuals’ personal characteristics, such as age, gender, race, disability, religion or belief and sexual orientation.

• Whistleblowing

 Whistleblowing is the term used when a worker passes on information concerning wrongdoing by the employer. Employers can deal with whistleblowing claims by having an effective policy encouraging transparency, investigating concerns  promptly whilst providing support and protection to whistleblowers.

•  Unlawful Deduction of Wages

Employers can face claims from existing or former employees if they withhold or underpay a worker’s wages without proper authorization. Some deductions are permissible while others are not.

Understanding the process of the ET is crucial for those involved in such disputes, otherwise a claim may be rejected or thrown out before it reaches a final hearing.  It typically involves several stages:

Compulsory ACAS Early Conciliation

Before presenting a formal claim, it is compulsory for a Claimant to explore early conciliation via the Advisory, Conciliation and Arbitration Service (or ACAS).

Either the prospective Claimant or the Employer may contact ACAS in an attempt to resolve any potential dispute.

However, the Claimant must contact ACAS before the expiry of the deadline for presenting their claim.  In many cases, the deadline is not more than three months after the incident that created the claim occurred. In an ordinary unfair dismissal case, for example, time will start to run from the date of the employment contract terminated.

It is critical to note that each type of claim will carry its own prescribed deadline and complex rules apply for acts of discrimination.

The prospective Claimant will be assigned an ACAS officer who will encourage them to reach a settlement without the need to present a formal claim to the ET. That will involve contacting the Employer, the Respondent in an attempt to reach a negotiated settlement.

The ACAS officer is qualified to enter the parties into a binding legal agreement if a settlement is reached.

If the prospective Claimant or Respondent refuse to participate in conciliation or the parties cannot reach a settlement, then the claimant will be given a unique reference code or ‘certificate’ number by the ACAS Officer. The Claimant cannot present a claim without their certificate number.

Receiving an ET1 Form and completing an ET3 Form

To initiate an ET claim, the Claimant must complete a form (called an “ET1”) and present it to the ET before the relevant deadline passes. The ET1 form includes essential information about the case, such as details of the parties involved, the nature of the claim, and the desired outcome.

If a claim has been raised against the Employer or one of its officers, you will need to respond using an ET3 form, which must be properly completed and filed with the Tribunal within a prescribed period, usually 28 days. An ET3 form (or form ET3) is a document that employers use to respond to an employment tribunal claim.

You can use this form to accept or deny the information provided by your employee and describe your counter-argument. In order to do so, the employer should gather the relevant evidence, before preparing the response addressing each allegation made by the Claimant.

What happens after submitting the ET3 form?

After submitting form ET3, the ET will decide whether the case requires a preliminary hearing or alternatively the ET could issue a case management order that includes directions and time limits for compliance.

Before the preliminary hearing, as the Employer you should receive a letter informing you of the date and clarifying the issues that need to be discussed or decided at the preliminary hearing.

In more complicated cases, the ET may hold one or more preliminary hearings. Preliminary hearings may be held for any number of reasons, but they generally fall into two categories:

• Hearings to decide if the case can proceed to a full hearing because the claim or part of the claim is potentially faulty and must be struck out. For example, the Respondent may argue that the claim was presented too late, or that the Claimant does not qualify as an employee; and
• Hearings to managing the process of preparing for trial, including deciding on when to exchange certain documents, how long the trial should be, or when it should take place.

This is often an opportune moment to further explore settlement options with the Claimant, ideally with the guidance and expertise of a legal adviser.

Once all the stages for the preparation for trial have been completed, the trial will proceed on the dates agreed.

During the trial, each party will have an opportunity to present evidence, question witnesses and sum up the case.  The Employment Judge and lay representatives may also ask questions of witnesses and the parties or their representatives.

The judgment may be made and communicated on the last day of the trial or, in the more complicated cases may be reserved and given at a later date.

If the ET rules in favour of the Claimant, various outcomes are possible:

1. Compensation: The ET may order the Respondent to compensate the Claimant for losses suffered as a result of the wrongful act. Calculating the award can be formulaic if the Claimant has already found another job before the trial.

However, estimating compensation involves a bit of calculated guesswork if the Claimant has not found another job and/or discrimination has been established.  There are also some upper limits to compensation in some types of claim, such as ordinary unfair dismissal (12 months’ gross pay in most cases).

2. Reinstatement or re-engagement: In rarer cases, and often where the Respondent is a large employer such as  Royal Mail or a Government department, the ET may order the employer to reinstate the Claimant to their former position, or offer them a similar job within the organisation.

3. Recommendations: The ET can also make recommendations to the employer to rectify the situation or prevent similar issues in the future. These recommendations are not legally binding but carry significant weight, particularly if another claim arises from the same circumstances and the recommendations have not been followed.

4. Costs: Less frequently, the ET may also require the unsuccessful party to pay the costs of the successful party if there are grounds to do so, namely, one party’s conduct has been unreasonable. Unreasonable conduct can be, for example, pursuing an unmeritorious claim, or a party’s witness lying when giving evidence. These costs include legal fees and other expenses incurred during the proceedings.

If the ET rules in favour of the Respondent, then in most cases that will simply be the end of the matter, although a Respondent will almost always ask for their costs to be repaid.  If they are awarded their costs, this can prompt a further hearing to decide how much is payable.

5. Finally, an unsuccessful party may consider challenging the decision if they are dissatisfied with the outcome. We have more information if you find yourself in that scenario — Understanding appeals and the Employment Appeal Tribunal.

If this all sounds a bit complicated, it’s because it is! The case reports are littered with failed claims made by those who have not understood the law or the ET’s rules, including some lawyers.

At Peacock & Co we have a comprehensive understanding of employment law and the procedural rules, having successfully represented hundreds of clients of all different shapes and sizes over the decades.

Whether you are making a claim, trying to prevent one or need to defend yourself, we can help you. Contact us for more information.