Guide To The (Employment) Tribunal Procedure

Except in very limited circumstances, prior to submitting the claim form to the Tribunal, a Claimant will have to follow the Early Conciliation (EC) process. This process involves Acas speaking with the parties to explore the option of settling the dispute at an early stage. If the parties can’t agree on a settlement during EC, Acas issues the claimant with a certificate which must be referenced in the tribunal claim form (ET1).

After the Employment Tribunal (ET) receives the claimant’s ET1, and if the ET1 is accepted, the ET will send it to the respondent. The respondent will have 28 days to file its defence using form ET3. A respondent can ask for the 28-day time limit to be extended, but we recommend taking legal advice before requesting an extension. If the ET3 is not submitted in time, the ET might issue a default judgment, which means the respondent may not have an opportunity to defend the claim.

Identify all the circumstances and (where possible) documents which are relevant to the claims – these should be used for producing the ET3 (although you do not need to attach any documentary evidence to the ET3). The ET3 should set out the Respondent’s version of events and whether it accepts or denies any of the claims made by the claimant. If the claimant has not included enough information for the respondent to properly respond to some or all of the claims, the respondent might ask the ET to order the claimant to provide more detailed information.

Once the ET has accepted your ET3, it will send a copy to the Claimant.

Directions

Once the ET has accepted the ET3, an employment judge will then review both the ET1 and the ET3 and can either list a final hearing or a preliminary hearing for case management (PHCM). A PHCM will usually be listed for more complex claims or where the claimant’s claim or the respondent’s defence is not very clear.
If a final hearing is listed, the ET’s notice of hearing will include ‘case management orders’ (CMOs) – these set out the steps which both parties must take and by what date to ensure that both parties are fully prepared for the final hearing. In most cases, the CMOs will cover the following steps:

• Preparation by the claimant of a schedule of loss setting out the financial compensation claimed. The claimant will be expected to provide this to the respondent.
• Prepare and exchange a list and copies of all documents that each party has which are relevant to the claims.
• Agree the content of and prepare an indexed and paginated documents bundle for use during the final hearing. Tribunals tend to make employers responsible for preparing the bundle.
• Preparation and exchange of written witness statements.

If a PHCM is listed, it will usually be to clarify the issues which the ET must consider at a final hearing and determine whether any preliminary issues need to be addressed before a final hearing can take place, such as whether the tribunal has jurisdiction to hear the case. Ahead of the PHCM, both parties will usually need to provide the ET with an agenda of the issues which might need to be discussed during the PHCM.

Once a hearing has been listed, the parties may consider instructing barristers to represent them at that hearing. However, you do not need to be professionally represented at a hearing (or indeed at any point of the claim).

Disclosure is the process of searching for and disclosing all the documents that are in the party’s possession or control (i.e., those which they have to hand or which they could access if requested) and that are relevant to the issues the tribunal will need to determine. Both parties usually produce a list of documents and send digital copies of those documents to each other.

If it is not possible to provide digital copies of the documents, either party might need to agree a date or time when the other party can inspect them.

“Documents” in this context means anything which stores or records information, so it covers far more than just paper!

The duty to disclose documents remains in force throughout the proceedings. Therefore, if relevant documents are found or are created while the claim is ongoing, they should be disclosed even if the initial deadline for disclosure has passed.
There are several exemptions which can be relied on to avoid disclosing all or part of a document. For example, a document might be marked “without prejudice,” which usually means it is not subject to disclosure. However, we recommend taking advice before relying on an exemption so that you can be certain that you benefit from it.

If either party believes that the other has failed to disclose a relevant document, it can apply to the ET for an order for specific disclosure of that document. The ET may also make this order of its own volition.
Failure to comply with an order for disclosure can carry harsh penalties. In addition to ordering one party to pay the costs incurred by the other as a result of the failure to comply with disclosure duties, an ET could strike out the whole or part of an ET1 and ET3.

From the lists of documents produced by each party, the parties will need to agree which of these will be referred to at the hearing. These documents will then be collated into a trial bundle.

You will need to consider who should give witness evidence to support your case. Often, this will be any relevant decision-makers or other senior members of staff. Each witness will need to produce a statement which contains their understanding of the circumstances relevant to the claim.

Even if you have a strong defence to the claim, you may wish to consider whether an economic or commercial settlement of the claim might be in your best interests. These kinds of settlements are more likely to be achieved at an early stage and before significant legal fees are incurred. However, a settlement can be reached at any point before a judgment is given, even if it is midway through the final hearing!

In addition to the costs of defending employment claims, there are various additional factors which the respondent should consider, such as: the time it can take up, the stress it can cause, the risks and uncertainty of litigation, and the impact of negative publicity. If a settlement is reached after the claim has been issued, it will usually be settled via the Acas conciliator, who will record the terms of the settlement on a document known as a COT3.

Terms of settlement frequently include the payment of some financial compensation to the claimant and, in return, their withdrawal of the claim from the ET and an agreement that both parties will keep the terms of the settlement confidential. In some cases, settlement can include non-financial aspects, such as agreeing a reference letter.

A hearing can be listed as soon as the Tribunal receives an ET1 as long as it falls 14 days after the ET3 is due.

Tribunal claims are usually heard in public by either an employment judge sitting alone or by a three-person panel: an employment Judge and two lay members, one who is drawn from employers’ organisations and the other from employee organisations (although each is impartial). A three-person panel is usually reserved for more complex claims, such as those involving discrimination.

Depending on how long the hearing lasts, it is possible that the employment judge will “reserve” their decision. It can then be several weeks or months before a decision is issued, depending on the ET’s caseload. However, the employment judge can give an oral judgment at the end of the hearing if they feel able to do so.

A judgment will not always be accompanied by written reasons, so these should be requested by either party if needed, especially if there is an intention to appeal. Once the written reasons are sent to the parties, the unsuccessful party has 14 days to apply for reconsideration of the decision and 42 days to appeal to the Employment Appeal Tribunal (EAT). There are limited grounds for appeals, so you should take legal advice if you think an appeal is necessary.

If the hearing overran or in complex claims, the employment judge may be able to decide whether the claims are successful. If so, the ET will then list an additional hearing to determine how much compensation the ET should award the claimant. The ET may also list additional hearings to consider costs applications if any are made after the judgment is given.

The ET will only order that one party pay the other party’s costs in limited circumstances, usually where it considers that a party or their representative has acted “vexatiously, abusively, disruptively, or otherwise unreasonably”, or if any part of the claim or defence had no reasonable prospect of success.