Employment Tribunal Process for Employers

A former or current employee would serve a claim form (known as an ET1) onto the tribunal, which sets out the basis of their claim.

Once the tribunal has accepted and processed the claim form (ET1), the tribunal will write to the employer asking them whether they wish to accept or defend the claim. The employer will have 28 days to respond from the date that the tribunal contacts them.

If the employer wishes to defend the claim, they shall serve a response form (known as an ET3). The tribunal would then ‘sift’ the claim form (ET1) and response form (ET3). If both are accepted the tribunal will produce Case Management Orders, which is essentially a schedule of how each stage of the claim will proceed.

If further clarifications or information is required a tribunal may schedule a preliminary hearing to consider the case at an early stage and then issue Case Management Orders as appropriate.

A tribunal will issue Case Management Orders when they are satisfied that they can identify all necessary orders required for the matter.

Case Management Orders is an order by a judge that a certain thing must be done. There could be consequences for failing to comply with the Case Management Orders, such as paying the opposing party’s legal costs, or even the claim being thrown out.

Case Management Orders usually include:

• For the claimant to set out the remedy which they are seeking, such as the amount of compensation

• For both parties to produce a list of documents which they hold in their possession that are relevant to the issues of the case

• For one party (usually the respondent) to produce a trial bundle in accordance with both party’s document lists

• For both parties to produce witness statements that they, and their witnesses, intend to rely upon at the final hearing

• For the legal representatives to prepare a statement of issues (factual and legal) which are to be assessed and decided by the tribunal at the final hearing

The orders set by the tribunal will each have their own deadline and requirements, such as a word limit for the witness statements, or a page limit for the trial bundle

A preliminary hearing is an interim hearing that may be called by the tribunal, or by application from either of the parties, if required. A preliminary hearing is usually necessary if the tribunal needs to consider either preliminary, or administrative issues.

Preliminary issues may include:

• Whether the claim or response should be struck out by the tribunal, in full or in part

• Whether a deposit order should be made. This is an order where one party must pay a sum of money to the tribunal as legal costs for the benefit of the other party should they be unsuccessful in their claim or defence

Administrative issues may include:

• The further directions which may be required to prepare the matter for the final hearing

• The issues which are in dispute between the parties that the tribunal will determine at the final hearing. This is typical in cases with multiple or complex issues

An employment judge may also provide a provisional assessment of each party’s strengths and weaknesses in respect of their positions to the case at hand

An interlocutory application in an employment tribunal claim is an application to the tribunal by one party, requesting a certain measure be taken.

By making an application, one party will be requesting the tribunal to make a specific order before the final hearing. These orders may include:

• Striking out a claim or response

• Amending a claim form (ET1) or response form (ET3)

• A postponement, adjournment, or staying procedures

• Extending certain time limits, such as to provide a response form (ET3)

• Increasing the trial bundle size limit for cases with a larger amount of evidence

Although an individual or company may make these applications themselves, we would advise to consult with our employment solicitors to ensure the application is made correctly, to avoid potential pitfalls.

As briefly mentioned in the Case Management Orders section, each party must provide the other a list of documents which are in their possession or control, that addresses the issues of the case. This obligation includes disclosing documents which assist the opposing party’s case.

Once the list of documents has been exchanged, either party may request certain documents (or all) to be sent to them. The parties do not need to send any documents over until requested by the other party.

Each party must usually provide witness statements from the witnesses each party intends to rely upon at the hearing.

The witness statements should contain an account of events by that person in relation to the issues to be considered at the final hearing.

The account of events within the witness statement should be written in a clear and chronological order. A tribunal will find difficulty in considering your witness statement if it contains facts which are not relevant to the case if the evidence and account of events are not in chronological order, and if you do not include key information which assists your claim or defence.

A witness statement is arguably the most important component of your claim or defence. We therefore strongly advise that you seek our employment law expert’s advice and assistance, as it is crucial that you get the witness statements right.

At the final hearing, the tribunal judge will consider all of the facts, evidence, and issues to be addressed. In attendance, you would have the witnesses of each party, their legal representatives, and the judge.

The hearing would usually begin with claimant’s position being advocated first. The solicitor, or barrister, would present the facts of their case and outline why their claim should be accepted. They may cross-examine the respondent’s witnesses, asking them questions in an attempt to discredit their case.

Then, the respondent’s position would be advocated by their solicitor or barrister. Asserting why their case is stronger, and the reasons why the claim should fail.

The judge, would be listening, potentially asking questions, assessing the merits of each party’s case and upon hearing all the available evidence and cross-examinations, will make a determination based on each party’s pleaded position, which is commonly referred to as a judgement.

Upon the conclusion of the hearing, the judge will consider each party’s pleaded case and will come to a determination. The judge will set out their judgement, which is essentially their decision as to whether the claim should succeed or fail, providing their oral and/or written reasons why.

If the claim should fail, the judgement will confirm this, and the claim will be prevented from proceeding any further.

If the claim should be successful, the judgement will either contain the remedy which the judge believes is fit in respect of the claim, or a remedy hearing will be scheduled so that each party can assert what they believe to be an appropriate remedy.

Each party may submit a request to the tribunal to reconsider the judge’s decision within 14 days of the date that the decision was sent to the parties. For example, the claimant may feel they should have been awarded higher compensation, or the respondent may feel the compensation is too excessive.

Alternatively, each party may appeal to the Employment Appeal Tribunal, setting out their grounds of appeal. This must be done within 42 days of the date that the Employment Tribunal sent the decision to the parties.

There are no set guidelines on what each successful claim would entitle a claimant to be awarded in compensation. There are general principles and caps on certain claims, but each case is unique in its own nature and may justify a higher or lower award compared to the next.

A claimant will write to the tribunal the remedy they seek from the respondent. This is commonly referred to as a schedule of loss. Sometimes, the respondent may produce a counter schedule of loss which usually sets out a lower amount of the claimant’s losses, both of which the judge will consider and assess and award what they believe to be fit in their view.

Before the claim has been filed, or during the tribunal process up until the final hearing, the parties may agree a settlement upon their own terms. There is a huge benefit in settling a claim before proceeding to trial.

The final hearing will be heard by a judge, who is an independent person irrelevant to the matter. By proceeding to trial, no matter your position, you risk another person deciding for you what the appropriate remedy should be. By giving up this control, there is uncertainty whether the parties will achieve the result that they wish on their own terms.

Employers should always take a commercial approach to settlement. Although they may feel aggrieved that the employee does not have a reasonable claim, they may find themselves saving money, time and stress by settling the matter at an early stage.