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Bringing and defending claims in the Employment Tribunal
A Claimant must present their claim form (ET1) to the Employment Tribunal within the time limit applicable to their claim (often three months, less one day, from the last act complained of or the date of dismissal - however please see below regarding ACAS conciliation). The Tribunal will serve it on the Respondent who must then present its response form (ET3) within a 28-day time limit.
Before a Claimant can issue proceedings they must now write or phone ACAS to complete an Early Conciliation Form. The employer is then contacted by ACAS to see if a settlement can be reached. If not then the Claimant can proceed to issue their claim to the Employment Tribunal. During any such conciliation period the time limits for issuing a claim (see above) are extended, usually for the equivalent period but it can vary.
Responding to a claim
If an ET3 is not filed in time a Respondent may be prevented from continuing to participate in proceedings and may receive a default judgment against it.
The ET1 and ET3 are crucial documents and we always advise that these are drafted professionally to avoid serious problems later in the proceedings.
Conciliation of tribunal claims
A Tribunal usually notifies the parties that the services of an Acas conciliation officer will be available to them. We will often use Acas to pass offers of settlement between the parties.
Once a Claim and Response are accepted: Case Management
Once the claim and employer’s response have been accepted by the Tribunal, an employment judge will issue an Order setting out a timetable of steps for both parties to take. In more complex cases the Employment Judge may require all parties to attend a preliminary hearing to enable a case management discussion to take place to consider (amongst other things) the steps required to ensure that the case is made ready for hearing. Either way, the timetable will usually deal with the exchange of relevant documents, expert and ordinary witness statements and schedules of loss.
Applications before a Hearing
In some cases, a party may request that the Tribunal make an Order in respect of a specific case management issue, such as amending the parties to a Claim, extending a deadline, or applying for a Preliminary Hearing or a deposit order where they think a case has little merit. Alternatively, it may be necessary to apply to postpone or adjourn a hearing, often where witnesses are unavailable or there are related cases elsewhere.
In general, Tribunals will direct that witness evidence must be provided in the form of written statements, to be exchanged simultaneously between the parties in advance the hearing. These are frequently now taken as ‘read’ by the tribunal at the hearing, rather than read out loud. The careful preparation of comprehensive witness statements, referring to relevant documents in the hearing bundle, is extremely important. This is usually the most time consuming task during the proceedings.
When a party believes that a person has relevant evidence but will not attend the tribunal to give this evidence voluntarily, they may apply to the tribunal for a witness order compelling that person to attend.
Once both parties have considered each other's documents, the aim is that only documents relevant to issues still to be determined should be put before the Tribunal. These documents will be included in a bundle, of which each party and the Tribunal will have identical copies.
Substantive tribunal hearings
The Tribunal will usually consist of an Employment Judge and two lay members. However, in some cases (including unfair dismissal) the Employment Judge can sit alone. We will explain to you how your case will run, the order of the witnesses and the layout of the room. We also provide guidance on being a witness.
Judgment and remedies
At the end of a full Tribunal Hearing, the Tribunal will try to come to a unanimous decision on all the issues before it and gives its decision in the form of a Judgment. A Judgment may be given orally or it may be a written Judgment issued on a later date. Written reasons may also be given if there is likely to be an appeal or review.
Review and appeal of tribunal decisions
Public policy dictates that there should be finality in litigation in all proceedings. In an employment context, this means that Tribunals decisions should only be re-opened in very limited circumstances:
- A review (within 14 days). These are intended, in certain judgments and decisions, to correct specific errors or to deal with relevant new evidence that has only become available since the original Tribunal Hearing. It is limited in its use. Once it has been undertaken a tribunal can confirm, vary or revoke its original decision.
- Appealing a Tribunal decision (within 42 days). A party can only appeal a Tribunal decision to the Employment Appeal Tribunal (EAT) on a point of law. They cannot appeal on the ground that they are unhappy with the outcome. The EAT will not interfere with findings of fact unless they are "perverse”.
Costs in the Employment Tribunal
Costs do not "follow the event" in Employment Tribunals as they do in civil courts. If a party is successful in bringing or defending a claim before the Tribunal, they will not normally benefit from an order that the unsuccessful party pays their costs. We will advise you of the likely costs you will incur in these matters.
We also have easy to follow guidance on this and a range of topics here.
IIf you would like further information, please contact Reena Sharma at our Farnborough office or Mel McCrum or Stacey Edgley at our Ash Vale office. They are all members of the Employment Lawyers Association.