Do Employment Tribunals Favour Employers?

If you’re on the receiving end of an employment tribunal claim from a disgruntled employee, it’s normal to worry whether the system is stacked against you. Many employees fear that employers, with their legal teams and resources, will automatically have the upper hand. Employers, on the other hand, worry that the tribunal will side with an employee simply because their claim may tug on the heartstrings, regardless of the facts.

The good news is that tribunals are meant to be neutral. Cases are decided based on the facts, the law, and the evidence, not on who’s the better-funded party or the underdog.

What Employers Can Expect From Employment Tribunals

Tribunals can feel daunting, especially if you’ve never been through one before. However, knowing how the process usually works can make it much less overwhelming. Here’s what to expect before, during, and after an employment tribunal claim.

Before the Tribunal: Early Steps and Preparation

Before a claim reaches the tribunal, there’s a mandatory stage called ACAS Early Conciliation. This is where the employee contacts ACAS to see if the dispute can be resolved without going to court. It’s free, confidential, and doesn’t involve the tribunal unless an agreement can’t be reached.

If early conciliation doesn’t work, the employee will be issued a certificate to formally make a tribunal claim (the claim form is known as an ET1). The employer will receive a copy and must submit a defence (an ET3 form) within 28 days of receiving the claim. Failing to respond could mean the tribunal decides the case without hearing the employer’s side.

At this stage, both sides start gathering evidence. This might include emails, witness statements, contracts, policies, meeting notes, and anything else that backs up the case. The claimant will usually be asked to set out a Schedule of Loss, a document showing how much compensation they seek and why. It’s also common for the tribunal to set a timetable for next steps (called case management orders), such as deadlines for disclosing documents and exchanging witness statements.

Having legal representation at this stage can help you stay organised, meet deadlines, and build a strong, credible defence.

During the Tribunal: How Hearings Work

Tribunal hearings aren’t formal like criminal courts, but they do follow a clear structure. You’ll usually be in a small hearing room with an employment judge (sometimes sitting with two lay members). Hearings are generally public, though attendance is typically low, and it’ll most likely be just the judge, the parties to the claim, and your legal representatives in attendance.

The claimant (the employee) presents their case first, calling witnesses and giving evidence. The defendant (the employer) then has the chance to cross-examine their witnesses before presenting their evidence and witnesses.

Tribunals are fact-focused. This means the judge won’t expect flashy arguments; they want clear evidence, straightforward explanations, and credible witnesses. Documents like emails, contracts, and meeting notes are often as important as oral evidence.

The judge may ask questions directly, and both sides can expect to be challenged if something in the evidence doesn’t add up. Tribunal hearings can also vary in length, depending on how complex the case is. Some claims are heard in a day, others may run for several days or longer.

After the Tribunal: Receiving the Judgment

In simple cases, the judge may give a decision immediately after hearing the evidence. In more complex matters, the judgment is “reserved,” and both sides receive the decision in writing a few weeks later. The judgment will set out:

• Whether the claimant’s case succeeded or failed
• Any award of compensation or other orders made against your business
• Reasons explaining how the tribunal reached its conclusion

If you win, that’s the end of the matter unless the claimant appeals.

If you lose, you may be ordered to pay compensation (e.g., for unfair dismissal, discrimination, or unlawful deduction from wages), and you’ll be given a set timeframe to pay, typically 14 to 28 days. 

In some cases, it may be possible to appeal, but appeals are only allowed on points of law, not because you disagree with the outcome.

Other Key Things Employers Should Expect

• Costs: Unlike civil courts, tribunals are generally costs-neutral, meaning each side bears their own legal fees, even if they win. Costs orders are rare and usually only made if a party behaves particularly unreasonably.
• Timing: Tribunals usually have a large backlog, so claims can take a long time. It’s not uncommon for a claim to take 9 to 18 months from when it’s issued to when the final decision is made, depending on the tribunal’s workload and case complexity.
• Settlement Opportunities: Even if a claim is underway, settlement discussions can happen at any point, often right up to the day of the hearing. Settlement isn’t an admission of fault, and is often a sensible commercial decision to save time, cost, and management distraction. ACAS can help facilitate settlement talks even once the case has been listed for hearing.
• Business Disruption: Tribunal preparation can be time-consuming. Expect your HR team, line managers, or directors to need time to gather evidence, prepare witness statements, and attend the hearing. Having clear internal records, proper procedures, and taking early legal advice will make the process much easier to handle.

Frequently Asked Questions

What Are the Chances of Winning an Employment Tribunal?

It depends on the facts of the case, the strength of the evidence, and how well it’s presented. Employees and employers alike win a significant number of tribunal claims every year. Getting good advice early on and documenting what happened can seriously improve your chances.

Final Thoughts

Employment tribunals are not designed to favour employers or employees. If you’re worried about your rights or need to defend a claim against you, getting legal advice early is the best way to strengthen your case. At Helix Law, we’re here to help. Get in touch to speak to our employment law team today.