If you are in dispute with your employer and have exhausted all other resolution options without reaching agreement, you may be considering taking them to an employment tribunal.
Can I make a claim to the Employment Tribunal?
The Employment Tribunal makes decisions on employment law disputes such as constructive or unfair dismissal, redundancy, claims over pay or working hours, breach of contract, equality or discrimination.
Under ACAS guidelines, you and your employer are required, where appropriate, to make attempts to resolve the problem before taking a claim to tribunal. This includes exhausting all of the employer’s organisational grievance and complaints procedures where available and appropriate, and use of the ACAS early conciliation service.
Where prior efforts at resolution have failed or not been possible in the circumstances, the measure of last resort for you as an employee is to take your employer to the Employment Tribunal.
It is a decision rarely entered into lightly, but where your livelihood, career and reputation are at stake, it pays to weigh up the risks of making a claim with the advice of an employment solicitor.
You will however need to act quickly. Any claim has to be submitted within 3 months less one day of the trigger event.
Should I make a claim to the Employment Tribunal?
Provided you meet the above conditions in attempting resolution, it will be a matter of ascertaining the strength of your case against your employer.
Tribunal claims are difficult to predict, but taking advice from an experienced employment law specialist can help you understand the merits of your claim, taking into account the facts of the case and the evidence you have such as emails, witnesses, text messages, a copy of your employment contract, relevant company policies, a (ideally contemporaneous) diary of events, minutes of any relevant hearings of meetings.
You should also discuss with your solicitor what it is you want to get out the claim, in terms of compensation, or if you are looking to be reinstated in your role or within the organisation.
Consider also that an employment tribunal is a public forum, anyone can attend the hearing, including the press, and details of your claim will be publically available.
How much does it cost to make an employment tribunal claim?
There are no tribunal fees to pay when making a claim.
In terms of costs, you should discuss with your solicitor at the outset how your own legal costs will be covered, whether you win or lose.
If you do lose, only in exceptional circumstances would you have to pay your employer’s legal costs. This would generally only be an issue if for example you had refused a reasonable offer to settle, if you had shown poor conduct during the claims process or if you had from outset very little prospect of success.
What happens at the employment tribunal?
The employment tribunal proceedings will be determined by the type and complexity of the claim.
For example, in more complex cases, the Tribunal Judge may request a Case Management Discussion for both parties to attend where the facts of the case are particularly complex, there are multiple allegations or there is an allegation of discrimination. This is an informal hearing to resolve matters of procedure in advance of the final hearing. The Judge may provide ‘directions’ for further information and evidence required at the full hearing.
In most cases, deciding the case will be a tribunal panel of three members; a tribunal judge, a representative of employer’s organisations and a representative of employee’s organisations. Some claims may be heard by an employment judge alone.
The panel usually sit at a slightly raised desk. The atmosphere is like a court but slightly less formal. For example, nobody wears wigs or gowns, but evidence is taken on oath and there are rules about what happens and who speaks when.
Do I have to accept an offer to settle my claim?
You may receive an offer from your employer to settle the claim before it goes to tribunal.
For the employer, a settlement can help to manage the risks associated with defending tribunal claims. With little certainty as to the amount of compensation that could be awarded if they lose, a settlement can save them the hassle and expense of preparing for and attending the tribunal, and it can also help to manage the risk of adverse publicity, which a public tribunal could attract.
You are not obligated to accept, but if you do reject what the tribunal considers to be a reasonable offer, you may have to pay your employer’s legal costs in the event you lose the claim.
Discuss any offer of settlement with your solicitor against the merits of your claim and potential level of award should you succeed before the tribunal.
If you do accept the offer, a settlement agreement will be drawn up for you and your employer to sign, confirming the terms of the settlement. This would usually include, among other details, the level of payment to be made to you, a confidentiality clause and an agreement that you waive any rights to make a future claim on this issue. Your solicitor should review the document and explain the terms before you sign.
What if you change your mind?
You are able to withdraw from the process but should take legal advice on how to approach this, as timing will be critical. If you leave it too late, you may be liable to pay for your employer’s legal costs.
If you accept an offer to settle, your solicitor would need to advise the tribunal of your decision and to withdraw your case. If the settlement is agreed as part of the ACAS conciliation service, ACAS will inform of the withdrawal.
Why take legal advice
Given the strict timeframes involved, take early advice to ensure you have considered all of your options to resolve the issue. Where you do proceed with an Employment Tribunal claim, working with an experienced employment law specialist will ensure your interests and rights are enforced throughout the claims process.