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.
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 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.
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).