Employment tribunals hear cases and deliver judgments on employment-related disputes. A claim can be made to an employment tribunal if you believe your employer, a potential employer or trade union has treated you unlawfully. Unlawful treatment may include unfair dismissal, redundancy, discrimination, or claims relating to wages and other payments. While an employment tribunal is not as formal as a court, it must observe the rules of procedure and act independently. This article aims to answer some of the most common questions surrounding employment tribunals and how they operate. This is the first of four articles in the employment tribunal series.
- Can I make a claim to an employment tribunal?
Whether you can make a claim to an employment tribunal will usually depend on what the particular issue is and whether certain criteria have been met. In most cases, you have to make a claim to the employment tribunal within three months of your employment ceasing or the problem happening.
For claims made to the employment tribunals after 6 May 2014, any prospective claimant wishing to bring a claim must first contact Acas (the Advisory, Conciliation and Arbitration Service). Acas will offer you and the prospective respondent (your employer) the opportunity to resolve the dispute by means of ‘early conciliation’ without the need to formally engage in the employment tribunal process. Submission of the early conciliation form to Acas will ‘stop the clock’ on the time period for you to submit your claim to the employment tribunal and the clock will only begin again once you have been deemed to have received the certificate issued by Acas. If your claim settles through Acas the claim is removed from the list for hearing (if already listed) and the case file will be destroyed 12 months from the date of settlement.
- Should I make a claim to an employment tribunal?
If you have notified Acas and early conciliation has failed to resolve the dispute, you must then decide whether you want to make a claim to the employment tribunal. If you have an adviser or representative, they will establish whether you have a stateable case, whether you meet the criteria to make a claim and what evidence you have to support your claim. The strengths and weaknesses of your claim will become increasingly evident as matters develop and your employer produces their evidence. In assessing the strength of your claim, it can be useful to think about the evidence you have that will support your arguments and the evidence your employer may wish to produce to reinforce theirs.
Employment tribunals can be unpredictable in their decisions. There is no guarantee, no matter how strong a case may appear, that you will win. That said, setting out your arguments in a clear and structured manner and gathering your evidence early can certainly help aid your decision as to whether or not you want to make a claim. Having a well-evidenced case can also improve your chances of settling before the case has to go to an employment tribunal.
- What costs are involved?
There is no fee involved in making a claim to an employment tribunal, however, if you have instructed an adviser or representative, you will likely have to pay for their services and should be unaware that, unlike in court proceedings, costs are generally not awarded against the losing party. In fact, costs/expenses orders are only made in very few cases, usually where the employment tribunal has found that a party, their representative, or both have behaved abusively, disruptively, or otherwise unreasonably in the way they have conducted their side of the case or that the claim was so weak that it should not have been raised in the first place.
- What does going to an employment tribunal involve?
Employment tribunals take place in office buildings with the hearings being held in tribunal rooms. The mood is much like being in court albeit slightly less formal – for example, wigs and gowns are not worn. Evidence is, however, taken on oath in the same way as in court and there are set rules in regard to procedure. In most cases, hearings will be open to the general public.
- Can I withdraw from going to an employment tribunal?
Generally, yes, however, you should note our word of caution on expenses in paragraph 3 above, with regard to cases that were perhaps so weak that they should not have been raised in the first place. Also, if an out of tribunal settlement agreement is reached, Acas will generally assist in concluding the tribunal proceedings.
Making a claim to an employment tribunal can be a daunting prospect. That said, it is important to remember that many cases actually settle ahead of the hearing and the system is designed to allow an opportunity for conciliation prior to engaging the employment tribunal. For more information about settling your case ahead of going to an employment tribunal, please visit https://www.acas.org.uk. If you have any questions or need advice and would like to discuss matters, please contact Dawn Robertson on +44 (0)131 220 9579 or at dawn.robertson@rooneynimmo.co.uk.
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This article is one of a series intended to de-mystify common legal issues for the non-lawyer and entrepreneur audience – they are designed to foster discussion and is by no means exhaustive. These materials are for informational purposes only. Nothing herein is intended nor should be regarded as legal advice. The distribution of this article to any person does not establish an attorney-client relationship with our firm. Rooney Nimmo assumes no liability in connection with the use of this publication. This bulletin is considered attorney advertising under the applicable rules of New York state. Rooney Nimmo UK is regulated by the Law Society of Scotland and Rooney Nimmo US by the New York rules of professional conduct. All attorneys and solicitors listed in this firm stipulate their jurisdictional limitations. Rooney Nimmo in the USA is a law firm registered as a New York State professional corporation.
