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Employment Tribunal FAQ’s
If an employee has brought a claim against your company to an Employment Tribunal, don’t panic. Be aware that although employers can rarely recover legal costs, even if they win a court case, Helix Law’s experienced team can guide you through the process, offering fixed or sometimes conditional fees. We recommend that you seek legal advice at the earliest possible stage to achieve a quick settlement, saving you time and money.
Here are some frequently asked questions regarding Employment Tribunal claims.
Following the Gibbons Review (a publication which set out a more efficient method of dealing with employment disputes), the Employment Act 2008 was put into force in April 2009. This gave employers a better and simpler framework to follow when resolving disputes with employees.
An Employment Tribunal makes decisions concerning employment disputes, including discrimination, redundancy and unfair dismissal.
The procedure goes as follows:
- The employee registers their complaint with the Employment Tribunal using form ET1. They are not required to pay a fee to register the claim.
- They can bypass your company’s grievance procedure and go straight to the Tribunal. However, if they fail to go through the grievance procedure without reasonable cause, they may face up to 25% reduction of any award they win.
- If the employee’s claim passes the ET1 stage, you will be sent a copy of the form. You are required to respond within 28 days using the ET3 form, detailing the case you intend to put forth to the Tribunal. If you do not respond, you risk a default judgment being awarded to the complainant.
- Alongside your copy of the ET1, Acas will contact you inviting you to engage in a conciliation process. The case can take conciliation at any time until the hearing.
- If the conciliation fails, a date will be set for the hearing, which can be scheduled at a minimum of 14 days’ notice. Failure to attend will likely result in favour being awarded to the employee.
- While Tribunals are more informal than court procedures, you may call witnesses to support your claims, and you can cross-examine any witnesses brought by the other party. You can use a lawyer to present your case. If this is something you require, contact an employment lawyer at Helix Law.
- Be aware that each side usually pays its own legal costs (find out about Helix Law’s Employment Tribunal costs here), but in the event that one side is considered to have behaved unreasonably, the Tribunal may award some costs against them.
- The Tribunal’s decision may be announced when the case ends, or you may have to wait a few days. Both sides are issued with a written version of the decision detailing the reasons for the verdict. You may appeal the decision to the Employment Appeals Tribunal if you find it unsatisfactory within 42 days of notification of the decision. Always obtain legal advice before making an appeal.
Acas (The Advisory, Conciliation and Arbitration Service, a public body of the UK government) is given power by the Employment Act 2008 to conciliate disputes in Employment Tribunals.
Employees must go through conciliation with Acas before starting a Tribunal claim. They must complete an EC (Early Conciliation) form online, and then Acas will attempt to facilitate a settlement between the employer and employee. In the case that a settlement is not reached, or one party fails to engage, an EC certificate will be issued so that the employee can take their claim further.
Yes, though workplace relationships are taken into account, and if they are considered to be irreparably damaged, then reinstating the employee to their former job is considered not practicable. They can also give the option to ‘re-engage’ the employee, meaning to reinstate them in a different but similar role. In any case, a decision of this form is quite rare.
If you refuse to comply with this demand, the employee can make a further complaint to the Tribunal which is then likely to order compensation. This compensation is likely to include an extra award seeing as you did not comply with the original decision. However, if you make a sufficient argument as to why the employee should not be reinstated, the additional award could be waived. Obtain legal advice promptly before making any appeals or arguments against a Tribunal’s decision.
Three months from the termination of employment is the deadline in which employees must make unfair dismissal claims. After this date, the claim may be barred unless there are found to be special circumstances that prevented them from presenting their claim within that timeframe. The deadline may also be extended in some discrimination cases.
If you receive an ET1 form from a former employee outside of this time frame, you should still complete and return your ET3 form, but state clearly that the claim has been made out of time as part of your defence. You should also request a preliminary hearing to determine why it was made out of time and how this affects the claim. The claim may still go to Tribunal for a number of reasons even if it was made out of time.
In this case, you should request a pre-hearing review. If the ex-employee’s case is weak, they will be advised ‘not’?… to continue with their claim. Most unreasonable cases will cease to progress from there.
If they still decide to pursue it, they’ll likely be asked for a large deposit (up to £1,000) and will be warned about the significant legal costs they will face in the likely event that their case is unsuccessful. This step is a further deterrent to stop the employee from taking the case to Tribunal.
In most cases that go to an Employment Tribunal, both sides are liable for their own costs. However, if a case is considered unreasonable or misconceived by the Tribunal, it may award up to £20,000 in costs to the other side.
If you can settle on reasonable terms outside of court, it makes sense to do so. However, it is worth considering fighting the claim if:
- You can prove the other party is wrong, but they are refusing to see it
- There are circumstances that are likely to have a significant effect on an award you are ordered to pay
- You consider that settling out of court will set a detrimental precedent to other employees and bring about more trouble in the future
Do not make these decisions alone – seek the advice of a lawyer with experience in Employment Tribunals by contacting Helix Law.
Yes – there are two ways to do this.
- COT3 settlement – if you settle through Acas you can get a COT3 settlement which is a legally binding agreement that stipulates that neither side can reinstate the claim at a later date.
- Settlement agreement – formerly known as a ‘compromise agreement,’ this means that the employee agrees to waive their statutory employment right for an agreed settlement for which they’ve received independent legal advice (usually paid for by the employer). Acceptance of this settlement prevents the employee from bringing back the claim. Settlement agreements must be drafted carefully, as legal decisions based on the effectiveness of settlement agreements in the past have gone against employers due to the wording involved. Always obtain legal guidance when creating a settlement agreement.