Time limits
All claims to Employment Tribunals must be presented to the Tribunal within 3 months less one day of the date of termination of employment. It is rare for the Tribunal to extend this time limit.
Grievance procedures
Employees should raise any concerns they have under their employer’s grievance procedure before bringing a claim and the Tribunal should state that they have done so in their Tribunal application. If employees do not raise a grievance prior to attending Tribunal, they could face a reduction in their compensation by up to 25%.
Commencing the claim
Employees must complete an ET1, which provides basic details of employment and includes their grounds of complaint and whether they would prefer to be reinstated, reengaged or receive compensation.
The Company will be sent a copy of the ET1 and must respond on form ET3 within 28 days, setting out the case that it will be putting to the Tribunal. If the Company fails to respond, the Tribunal can decide in favour of the employee.
If the employee files a claim out of time, the Company should state this in its ET3 and ask for a preliminary hearing to determine the issue of the claim being out of time.
Negotiation and ACAS
ACAS will contact both parties inviting them to take part in a conciliation process. If conciliation is successful and the parties reach agreement, they will enter into a legally binding agreement known as a COT3 under which the employee is prevented from taking the claim any further or making a fresh claim against the employer, usually in return for a sum of money.
If conciliation fails, the parties will be sent a date for the hearing will be set which may be as little as 14 days ahead. If either party fails to attend the hearing, the Tribunal is likely to find in favour of the party which does attend.
Preparation
There will be various tasks which will need to be completed prior to the hearing including the preparation of a bundle of documents which the parties intend to rely on at the hearing, the drafting witness statements and possibly obtaining a medical report.
Both parties are entitled to ask for as much information from the other as they feel to be necessary. If either party fails to disclose certain pieces of information, the other side can write to the Tribunal and ask them to Order that the other side disclose it. If either party believes that the information they are being asked to disclose is irrelevant, they should write to the Tribunal stating this.
The hearing
You will be notified of a hearing date once you have supplied the Tribunal with dates which need to be avoided.
Hearings are open to the public and they can be reported in the press if they are newsworthy.
It is always best to call witnesses to give evidence in person as more weight is attached to evidence where the witness can be cross-examined. You can submit witness statements without asking the witnesses to give evidence but it will not carry as much weight as calling them.
You can apply to the Tribunal for witness orders to compel witnesses to come forward, if you need to do so.
The decision and costs
The Tribunal’s decision is usually announced at the end of the case, or it may be reserved and sent to you in writing. If you believe that the Tribunal has made an error in law, you may be able to appeal to the Employment Appeals Tribunal (EAT).
Costs can vary considerably, depending on the type of case and how the individual pursues it. However, the cost of pursuing a claim to Tribunal including preparation for the hearing and the first day of the hearing, is likely to be between £6,500-8,000 plus VAT.
Parties pay their own costs although one party may, in some circumstances, be able to recover costs from the other.
Compensation
Unfair dismissal
The compensatory award is made up of two elements:
- a basic award, which is calculated on age, length of service and gross weekly pay, up to a current maximum of £11,400; and
- a compensatory award, which takes account of the employee’s loss and which is currently capped at a maximum of £65,300.
The compensatory award may be reduced if the Tribunal considers the employee to have contributed to their own misfortunes.
There is no limit on the compensatory award for unfair dismissal where the employee is dismissed unfairly or selected for redundancy for reasons connected with health and safety matters or whistleblowing.
If either party fails to follow the ACAS Code of Practice in respect of disciplinary or grievance matters, the employee could face either an increase in their compensation up to a maximum of 25% or a reduction of up to a maximum of 25% respectively.
Discrimination
There are no upper limits on awards in discrimination cases. An employee who wins on a discrimination claim might also be entitled to compensation for injury to feelings.
Wrongful dismissal
If employees have been dismissed wrongfully (usually because the Company has failed to serve the correct notice as due under the employee’s contract of employment), they can claim damages from the Company to put them in the position they would have been in if the breach had not occurred. Usually, this means a sum equal to salary and any benefits payable during the notice period.
Appealing
If you disagree with the Employment Tribunal’s decision on a point of law, you have 42 days to appeal, from the date the notification of the decision is sent to you (and not the date of receipt). The appeal is limited to points of law.
