04 Nov 2019
It’s the unspoken horror hanging over every employment law issue—the tribunal. A simple HR matter can quickly escalate to the point where an employee makes a claim. If they do, you could end up facing a tribunal.
Here’s everything you need to know before you end up in that position:
What is an employment tribunal?
It’s an independent judicial body with the purpose of solving disputes. The purpose of a tribunal is to address issues between employers and employees, in particular:
They’re less formal than a court. However, much like a court, tribunals can’t dispense legal advice and all hearings are open to the public.
How to prepare for an employment tribunal
Whatever case you are facing, paperwork is your friend. The actual hearing may take place long after the event, so it’ll help to have a written account of what happened. But that’s not all. Try to gather the following before the big day:
- Anything written down related to the incident or issue
- A copy of the employee(s) contract and employee handbook
- Any relevant communication - letters, emails, texts, etc.
- Witness statement(s)
Some of these documents will purely serve as evidence. Others will be in a ‘bundle’. Usually, you’ll agree with the employee involved in the case what to include in the bundle. If there’s any disagreement, you can produce two bundles—one for you and one for your employee.
Before you go to the hearing, make sure you carefully review the claim against your organisation. Plan your response to address each of the allegations. If an allegation is true, don’t deny it. If it isn’t, set out your version of events clearly and precisely. Under no circumstances should you simply deny all allegations. This will only serve to damage your credibility and irritate the judge.
Finally, ensure that all witnesses are happy with the witness statements. Make sure you involve them in the preparation of the statement and approve it before finalising. Then, you’ll be ready to go. The first thing you’ll want to do on the day is arrive early.
On arrival, security will check you and your bags before signing you in. Before the hearing officially starts, the clerk will call your organisations name and ask for witness statements and case documents. Have plenty of copies ready.
What happens at an employment tribunal?
Now, for the actual employment tribunal process itself:
They’ll call you name and take you into the hearing room. There’ll be two large tables, each with a sign. One is the claimant’s, and one is yours (the respondent’s).
After the judge has introduced themselves it’s time for the witness statements. Which side goes first depends on the nature of the claim.
Each party takes turns to call their witnesses. The witnesses will all face cross-examination. The questions are often leading. Witnesses can’t confer with anyone in the hearing before answering questions, but they can refer to the document bundle provided. If there are any inappropriate questions, your tribunal representative can object to them.
Finally, there'll be closing submissions. This will allow each side to summarise the case as they see it. The tribunal may ask for submissions in writing.
Then, the tribunal will retire and deliberate. They may come to a decision that same day or you might have to return.
The government will publish the final decision on its website.
How long does an employment tribunal take?
Timetables for tribunals are complex, especially if the claim itself is complex. Once an employee submits a claim, you will receive an ET1 form. You will then have 28 days to submit a response to the claim using an ET3 form.
According to HM Courts & Tribunals Service, the average time between an employee making a claim to the ET and receiving a decision from the ET is 27 weeks.
Employment tribunal time limits
There isn’t a time limit on the length of the actual tribunal case. However, there is a time limit for issuing an employment tribunal claim.
Staff members wishing to make an unfair dismissal claim must first contact ACAS within three months, less one day from the day of their ‘effective date of termination’ of their employment.
What are the chances of success at an employment tribunal?
For obvious reasons, there isn’t one standard success rate statistic. However, Croner has those stats to hand. We achieve a successful resolution in 86% of cases, and our legal expenses insurance covers 14% (provided you follow our advice).
What happens if I lose an employment tribunal?
If you lose a case, the tribunal can order you to do a number of things, depending on the case. For example, you might have to:
- Pay the claimant's tribunal fees.
- Pay the claimant for damages.
- Pay the expenses of witnesses involved.
- Give a dismissed employee their job back.
Another thing to keep in mind is the government will publish the final decision on its website. You can get an anonymity order, but these are notoriously difficult to obtain.
Approval of an order will be largely dependent on your circumstances. However, approval for an order is more likely if:
a) There’s a substantial right to protection under article 8 of the Human Rights Act.
b) The publication of the decision has a significant impact on the individual’s right to privacy and family life under article 8.
Can you appeal an employment tribunal decision?
Yes, you can ask a tribunal to reconsider their decision. To appeal, you should write to the tribunal office. In the letter, you should explain why you want the decision reconsidered. You must do this within 14 days of the tribunal’s decision.
Remember, appealing does include a fee. Alternatively, you can appeal to the Employment Appeal Tribunal if you believe there’s a legal mistake.
What is an employment appeal tribunal?
It’s an independent judicial body responsible for handling appeals against a decision made by the employment tribunal in the UK. You may appeal a decision if:
- The ET got the law wrong.
- They didn’t apply the correct law.
- The ET didn’t follow the correct procedure.
- The ET has no evidence to support its decision.
- The ET was unfairly biased.
Do I have to pay for a tribunal?
There’s no cost for participating in a tribunal. However, if you’re an employer and your employee has made a claim against you, you’ll want to pay for representation.
Also, as stated above, if you lose the tribunal you may have to pay the employee or cover their costs. This includes a basic award and a compensatory award. Just so you have an idea of how much this can cost, an unfair dismissal has a compensation cap of £86,844. It’s worth noting, in some cases, employees may receive the basic and compensatory award.
Where can I get employment tribunal legal advice?
Facing an ET alone can be both daunting and challenging, which is why we provide expert employment tribunal support for employers.
From the boardroom of the courtroom. Day or night. We’ll prove you with our expert knowledge, saving you time at money at every stage of your dispute. Whether you need full employment tribunal legal advice, defence development, representation, or just peace of mind, we can provide it.
We handle an average of 1,025 claims each year, so we know the ins and outs of an employment tribunal like the back of our collective hands.
Call our employment tribunal helpline number today for your free advice: 0808 145 3380.
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