How to manage an Employment Tribunal claim

If your employment has ended, or you have raised a formal grievance and still want to take things further, the next step is Acas early conciliation. For most claims, you need to contact Acas regarding early conciliation, within the above mentioned timescales, before making a claim at the Tribunal. 

Once you have made your request for early conciliation, you will be sent an email asking you to contact Acas, which you should do as soon as possible. If you agree to participate in early conciliation, a conciliator will be appointed and they will contact you about your case. They will then contact the employer and try to negotiate a settlement.  

If it is not possible to reach an agreement, or your employer refuses to engage in conciliation, Acas will issue an Early Conciliation Certificate, which you will need in order to submit a claim to the Employment Tribunal. There are strict deadlines regarding the time you have to bring a claim at Tribunal, and these time limits can be impacted by the Acas conciliation process. If there is any doubt, then legal advice should be sought. 

It is important to note that Acas conciliators are conciliators and not lawyers; they are not qualified to advise on Employment Tribunal time limits and we have had several situations involving clients who have relied on their inaccurate advice about when they should submit their claims.  

If there is anything you are unsure about, legal advice should be taken as is important to get the claim form correct, so the claim is not rejected. You should make sure the claim is actually received by the Tribunal. If you believe you have submitted it, but don’t receive a confirmation, you should make further enquiries rather than assume it has been received.

The Tribunal will then send a copy of the claim to the opposing party who usually has 28 days from receipt of the claim in which to send the Tribunal their response to the claim. 

Your claim will be dealt with by the Tribunal closest to your place of work. Therefore, if you worked in Bolton, your claim is likely to be heard in Manchester. If you lived in Dewsbury and worked from home, but your employer was based in London, your claim is likely to be heard in Leeds.

Providing a schedule of loss early can often assist with settlement negotiations if parties wish to resolve the claim at an early stage without the need for hearing. Given the time, stress, uncertainty and potential cost involved in litigating claims in the Employment Tribunal, we always recommend that clients give careful consideration to settlement. 

Sometimes, particularly in discrimination and/or whistleblowing claims, Judicial Mediation can be offered to the parties. Judicial Mediation is much more informal than a hearing and involves attending the Tribunal, either in person or via a video link, where a Judge will mediate between the parties to help them reach a settlement. If a Judge thinks a case may be suitable for Judicial Mediation, they will often raise this at a Case Management Preliminary Hearing.

The purpose of the case management hearing will be for the parties to clarify the issues in the case before an Employment Judge and for the Judge to decide what the timetable for the hearing preparations should be. If you attend this hearing as a litigant in person, it is important for you to be prepared to answer many questions about your claim. For example, what happened, who was involved, when did it happen, what do you perceive to be the link between the incident and the ‘protected characteristic’ (e.g. sex, disability, age etc) relied upon. It is also important for you to have your diary/unavailable dates with you, as the Tribunal are likely to want to arrange a further hearing during it. 

It may also be to decide other matters, such as whether an expert’s report is required, whether you should be ordered to pay a deposit into the Tribunal in order to pursue your claims (which may happen if the Judge decides that a claim has ‘little reasonable prospects of success’) and/or to decide whether another preliminary hearing, including a public preliminary hearing, should take place. 

As a litigant in person, the Tribunal are unlikely to expect you to give detailed legal submissions relevant to your claim. However, the submissions part of the hearing is your opportunity to ‘sum up’ your case before a decision is reached. If the opponent is legally represented, they may give detailed legal submissions. It might help you to ask the Judge for that represented party to give their submissions first, and for you to be given a short break before yours, to help you plan what you want to say. You are also permitted to provide written submissions if that’s easier and more helpful for you.  

After the hearing, the Judge may give an oral Judgment, and this will be followed by a written Judgment a few days later. Sometimes Judgment is ‘reserved’, in which case it will be sent to you at a later date, once it has been decided and written up.  

Full detailed reasons are usually only given in an oral Judgment or a ‘reserved’ Judgment; if an oral Judgment was provided and you would like written reasons,  you can request them.  A request must be made either during the hearing or within 14 days of the date on which the Tribunal sends the written Judgment. Please be aware that if written reasons are provided, they will be made available on the Government’s website. You should bear this in mind before making any request for full written reasons as the media do regularly review Tribunal Judgments on the Government’s website for interesting stories to write about. If this happens, you may have no/little control over what is published about your case in the newspapers. 

• Before you decide whether to submit a claim, it is a good idea to find out what claims you might have and whether they are likely to succeed. Doing this can save a lot of stress and hard work at a later stage.
• However, it is much easier for you pursue all potentially meritorious claims and withdraw the weaker ones later, as opposed to miss a claim out and then have to make an application for permission to amend your claim to include them at a later stage.  This does attract a costs risk (considered below) which can be mitigated by withdrawing any weak claims at an early stage in the process and/or agreeing with the opponent’s representative that they will not pursue a costs application against you, should you withdraw those claims. 
• Although costs are rarely awarded in the Employment Tribunal, a party can be ordered to pay some of all of the other sides costs if a Tribunal decides that a claim or defence has no reasonable prospect of success. Costs can also be awarded if a party acts unreasonably or vexatiously during the course of proceedings and as such it is important to always comply with the Tribunal directions and act properly throughout. Taking legal advice at an early stage can reduce the risk of this happening.
• If you are pursuing a discrimination or other detriment claim, your claim can be pursued against the individuals who subjected you to discrimination/detriment as well as the employer. You will need to start the Acas process in respect to those individuals as well. This may be helpful if the employer decides to later rely on what is called the ‘statutory defence’, seeking to evade liability for these employees’ actions towards you. It may also be helpful to do this if you think there is a risk of your employer going into insolvency proceedings. 
• In terms of hearings, preparation is key: ensure you are familiar with the bundle of documents and both your own witness statements and those of your opponent. There is no quick way of preparing a case, the more time you have been able to spend to find your way through the various documents with ease, the less pressure you will be under if put on the spot during a hearing.
• Hearings are generally heard in public so go and observe a hearing if you are new to the process. This will assist in familiarising yourself with both the legal jargon and procedures. If your opponent is likely to be represented by a solicitor or a barrister, try to sit in on a hearing where the respondent is professionally represented, as this will give you a better idea of how to present a case.
• Be very mindful with regards to the Employment Tribunal deadlines and if in doubt, obtain legal advice at the earliest opportunity. A failure to comply with these deadlines can result in your claim being struck out and/or a costs award being made against you.
• Be realistic about the value of your claim. We often see claimants who were paid national living wage claiming £500,000+ for their claims. This is wholly unrealistic, is likely to result in you alienating the opponent from any settlement discussions and may lead to susceptible to a costs risk.  Forming a realistic assessment of your claim value and being appreciative of the risk of your claim failing (and reflecting that risk in any settlement offer made), is likely to be much more conducive to sensible settlement discussions.

If you are reluctant to pursue a claim without representation, you are already dealing with a claim yourself but have some distinct queries, or would like someone to take over the running of your claim, there are a number of options available:

• Check all your insurance policies for legal expenses cover.  If you have this cover, check to see whether it covers employment claims.  If it does, contact your insurer to see whether you can make an insurance claim to cover the cost of legal advice and representation. Your insurer may encourage you to use their panel lawyers for such representation however you do have a right to choose your own solicitor, depending upon the stage in the litigation that you are at when you make your claim; and/or
• Contact a firm which specialises in employment law to ascertain the possible funding options available. Try and avoid those law firms that specialise in other areas and do a small proportion of employment work ‘on the side’.  We offer various funding options, including privately paying or ‘no win no fee’ agreements and would be delighted to talk to you to ascertain if we are able to assist.  When working on a privately paying basis, we often offer fixed fees for specific pieces of work and never exceed those fees. We can be involved every step of the way to ensure that you reach your desired outcome as quickly and as stress free as possible.