Employment Tribunal Procedure
(I). Employment Tribunal Procedure
When a member brings an Employment Tribunal claim and this is
supported by the Union based on its prospects of success, the Legal
Services Department will either provide representation from one of
the Union's experienced panelists or (in some cases) specialist
employment solicitors.
Initial Stages: Starting a Claim
The parties to Employment Tribunal claims are called
"claimant" and "respondent". The Employment
Tribunal process begins with the claimant sending an ET1 form to
the appropriate Employment Tribunal. The ET1 form is the document
in which the claimant sets out the details of his/her claim.
Which Employment Tribunal is the appropriate one for the ET1 to be
sent depends on where the claimant works (or used to work) for the
respondent. The claimant should send his/her ET1 to the Tribunal
which is closest to their place of work. The Employment Tribunal
Service website (www.employmenttribunals.gov.uk)
provides the address of the appropriate Employment Tribunal office
based on the postcode of the place of work. The ET1 form can also
be downloaded from the Employment Tribunal Service website.
Please note that if a member wants to make an Employment Tribunal
claim then, because of the very short time limits involved, a safe
approach is for the member to submit the ET1 with the assistance of
their branch if appropriate before requesting representation or
advice from the Legal Services Department.
Initial Stages: The Response
Once an ET1 has been received by the Employment Tribunal a copy is
sent to the Respondent. The Respondent then has 28 days to
complete a response (the ET3 form) and send it to the Employment
Tribunal. Once received, the Employment Tribunal sends a copy of
the ET3 to the claimant. If the claimant has given details on
his/her ET1 form of a representative (e.g. a Union panelist or
solicitors) who is acting for them, then all correspondence from
the Employment Tribunal and the respondent will be sent to the
representative rather than directly to the claimant.
Directions
After these initial stages have been completed, in all but the most
straightforward of cases, the Employment Tribunal will give
directions. Directions are instructions from the Employment
Tribunal on the steps that both sides need to take in order to
prepare for the hearing. The steps covered by directions typically
include:
1. both parties disclosing all relevant documents (including
electronic documents) that they have in their possession or
control;
2. the claimant preparing a schedule of loss, meaning a document
setting out the amount that he/she is claiming and the basis on
which this is claimed;
3. the parties agreeing a bundle of documents to be used at the
hearing; and
4. The parties preparing written witness statements and exchanging
them in advance of the hearing. Generally speaking only witnesses
who have prepared and exchanged written statements of their
evidence in advance are allowed to give evidence at an Employment
Tribunal hearing.
In some cases, directions are discussed between the parties at a
case management discussion either held at the Tribunal or by
telephone. In addition, the Tribunal sometimes holds a pre hearing
review which is a mini hearing considering a preliminary point that
impacts on the rest of the case. Examples of issues considered at
pre hearing reviews include whether the claim was brought in time
or whether the claimant is eligible to bring the claim in question,
by examining "employee" vs. "worker" status or
the claimant's length of service.
Complying with the Tribunal's directions on time is crucial.
Failure by either party to comply at the specified time can have
very serious consequences including the striking out of the claim
(or the respondent's defence to the claim). There is generally
a period of anything between three and twelve months between the
ET1 and ET3 being sent and the hearing itself during which the
steps covered by the directions are taken. The time that it takes
the Employment Tribunal to list a hearing will depend on how busy
that particular Tribunal is and how many days the Employment
Tribunal and the parties think the case needs depending on things
like the complexity of the issues and the amount of documents and
witness evidence involved. A longer hearing with one of the busier
Tribunals can unfortunately take significantly longer than twelve
months to get heard.
Settlement
Settlement is possible at any time from the outset of a Tribunal
claim, right up until the hearing itself. Settlement can be
negotiated directly by the parties, by their representatives or
through ACAS. An ACAS officer is assigned to every Employment
Tribunal claim and, generally speaking, using the ACAS officer to
negotiate settlement is a good idea, not least because if the
parties do agree the ACAS officer can quickly and easily record the
settlement in a formal document which is binding on both parties.
In many cases the ACAS officer will play a helpful and proactive
part in encouraging the parties to settle.
The Hearing
If the claim is not settled, then a hearing will be
held. The Employment Tribunal panel hearing in almost all cases
will be made up of three members - a legally qualified chairperson
called an Employment Judge and two non-qualified members, one of
which will have an employer related background (for example a
senior manager, HR officer etc) and the other an employee
background (often experienced union officials).
At the hearing the party with the burden of proof presents their
evidence first. Which party has the burden of proof depends on the
type of claim being made. Each party's witnesses will either
be asked to read out their witness statements or the Employment
Tribunal panel will read the statements themselves. Once a
particular witness' evidence has been read, the witness is
cross-examined by the representative for the other party. The
Employment Tribunal panel also asks any questions that they want to
ask, and then the representative for the witnesses' side can
ask limited re-examination questions. Once this process has
completed for one side's witnesses it is repeated for the other
side witnesses.
The parties' representatives then each make submissions, which
are arguments in support of their respective cases based on the
evidence that has been heard and the relevant law. Submissions are
the last part of the hearing before the Tribunal gives its
decision. The approach taken by most Tribunals is that there
should be sufficient time within the days of the hearing itself for
the Tribunal to deliberate and to give its decision. However, in
many cases the hearing of the evidence and submissions takes longer
than anticipated and so there is not time for the Tribunal's
decision on the day. If this happens then the decision is
"reserved" and sent to the parties in writing on a later
date.
Further information and leaflets about various aspects of
Employment Tribunal procedure and what happens at an Employment
Tribunal hearing can be found on the Employment Tribunal Service
website (www.employmenttribunals.gov.uk).
