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What is an Employment Tribunal?

An employment tribunal is a legal hearing to resolve disputes between employers and employees. In England and Wales, employment tribunals are an alternative to going to court. Employment tribunals are independent but are part of the legal system and have the power to decide legal claims between employers and employees. Most employment-related disputes that cannot be resolved through mediation will be heard at an employment tribunal. 

Employment tribunals can hear all types of work-related disputes over employment rights, such as unfair dismissal, discrimination claims based on gender, race or disability, and redundancy claims. These are the most common causes of a hearing, but there are plenty of others. 

Alternative mediation and early conciliation routes via advice services such as ACAS — The Advisory, Conciliation and Arbitration Service — can help settle claims before resorting to an employment tribunal.

What is an Employment Tribunal?

An employment tribunal is a specialist employment court. Its processes and decisions are governed by the law and are legally binding. An employment tribunal is a way that an employee in dispute with their employer can have their claim heard by an independent panel of employment specialists without pursuing the legal process through the courts and risk paying costs.

Three people make up what is called the tribunal panel and decide the claim. One is typically an employment judge, one represents the employer’s organisation, and the last acts on behalf of an employee’s organisation, like a trade union. The employer and employee’s representatives are called lay members. 

Both sides of the employment dispute may be presented very much in the style of a court case, but the tribunal hearing will be in an ordinary office, not a courtroom. 

Increasingly, tribunal cases are heard in front of the employment judge only and without the presence of the two other panel members. 

Discrimination cases must be heard in front of a panel of three employment judges. Evidence is taken under oath, but the panel members do not wear legal-style wigs and gowns.

What Do Employment Tribunals Do?

Employment tribunals decide claims from employees against their employers based on employment law that have not been resolved through internal mediation processes or through using services like ACAS. 

Employment tribunals are a service available in England and Wales and also Scotland.

Can You Make a Claim to an Employment Tribunal?

Once an employee ‘makes a claim’, an employment tribunal can decide most employment disputes. There are some restrictions on which employment claims can be heard by a tribunal. There are also certain prescribed time limits. In most cases, an employee has three months, less one day to make a claim to the employment tribunal following the inciting event or incident that caused the initial dispute.

Before an employee considers presenting a claim to a tribunal, it is usually necessary to contact ACAS, which acts as a mediator to see if there is a way to resolve the dispute without going to a tribunal. 

It may be sensible to take employment law advice at this stage.

ACAS provides a service called the Early Conciliation Service. It is not compulsory to consult ACAS, but it can test the claim’s validity and offer a potential resolution before matters escalate. There may also be a work-based resolution scheme. It may help an employee’s case if they demonstrate to the tribunal that they have sought resolution through other channels first. If the employee is a trade union member, the union can often offer practical advice at a preliminary stage.

What’re The Costs of Employment Tribunals?

One of the big attractions of using an employment tribunal rather than going to court is that the employee is not automatically liable for paying the employer’s legal costs if they lose the case. Data shows that employment tribunals ordered the employee to pay the employer’s costs in less than 1% of cases. Despite costs rarely being awarded to employers, the threat to apply for a costs order is often used as a tactic against the employee to persuade them to accept a lower offer or drop the case.

An employee is more likely to risk a costs order if the case they bring is hopeless or malicious. Or if they change their mind and withdraw from the tribunal process after the employer has incurred expenses compiling their case. 

Many employees and employers will take legal advice to represent their interests at a tribunal hearing, although some cases are made by the employee acting on their own behalf. It is not essential to have a legal adviser, but it may be recommended in complex cases and disputes.

There used to be a fee payable to to bring a claim before an employment tribunal, but fees were abolished in July 2017 after the Supreme Court ruled that charging for access to tribunals was unlawful.

What Happens if I Lose an Employment Tribunal?

The outcome of an employment tribunal is called ‘the judgement’. The tribunal may not render judgement on the day of the hearing. 

If the employee, ‘the claimant’, is successful, the tribunal has several options. These include reinstating the employee in their original job or re-engagement: remaining with the same employer but in a new role. For understandable reasons, reinstatement and re-engagement are rare. More commonly, the tribunal awards compensation to the claimant, and the employer must pay it.

If you lose an employment tribunal claim to the employer, there will not be a compensation payment for the loss you believe you have suffered. If the employee follows the due process of law, it is very unlikely that they will have to pay the employer’s legal costs — unless the case revealed that the employee lied or brought a malicious claim.

An employee who has lost their tribunal case can ask the court to reconsider the decision. There is a time limit of 14 days for the employee or claimant to write the tribunal office requesting that the decision be reviewed. The claimant must provide a valid reason — such as new evidence coming to light.

There is a route to appeal the tribunal’s decision within 42 days of the judgement. But there must be an error of law present in the tribunal’s decision for this to be worthwhile. If you haven’t taken legal advice, it is highly recommended that you do so before deciding whether or not you should appeal the tribunal’s decision.

Conclusion

An employment tribunal is a safe and effective way of resolving employment disputes that early mediation services like ACAS can’t fix. 

Win or lose, the employee is unlikely to suffer the penalty of the employer’s costs. Reinstatement or re-engagement is also unlikely if the claim is successful — even in cases of unfair dismissal. 

The most common award is a payment of financial compensation. Taking legal advice at an early stage can help an employee best direct their claim to a successful outcome.

Posted by:

Alex Cook
Solicitor

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