Bringing an Employment Tribunal or Court claim can seem like a daunting prospect given the potential time, cost and risks involved. But if you’re clear what your claims are, have strong evidence to support these and are prepared to follow the Tribunal or Court process, there is no reason why you cannot bring a successful claim.
Who can make an employment claim?
You can bring an employment claim if you are a current employee, an ex-employee, or a prospective employee (for example if you have applied for a role but have not been successful).
What’s the difference between a tribunal and court?
Tribunals are not as formal as a Court. For example, no-one wears wigs or gowns. In the Tribunal, the parties are known as the “claimant” (the party bringing the claim) and the “respondent” (the party defending the claim).
It does not cost you anything to bring a claim in the Tribunal, but you need to pay a fee to bring a claim in the Court. The amount of the fee depends on the level of compensation you are seeking.
How long do hearings in a tribunal or court take?
Hearings in a Tribunal and Court are open to the public and the number of days for the actual hearing itself will depend on the claims you bring and how many witnesses are involved.
The time it takes for your case to be resolved from taking your initial instruction can vary and depends at what point during the process the claim is resolved. If your case reaches a settlement in pre-claim conciliation it is likely to take 4-6 weeks. However, if your case went all the way to a final hearing then it could take anywhere between 6-18 months. Every case is unique, and a more accurate idea of timescale can be given once we have more information.
What to consider when bringing a claim
When deciding on whether to bring a claim it’s important to think carefully about the facts and the detail. Below we’ve gathered the top 12 things we recommend you consider before embarking on bringing a claim:
1. What claim do you have?
Has your employment been ended and therefore you have a potential claim for unfair dismissal? Have you been unfairly treated by your employer, for example because of your gender, race, age, religion, or disability and therefore you have a potential claim for discrimination? Has your employer failed to pay your wages or overtime and therefore you have a potential claim for breach of contract or unlawful deduction from wages?
2. What is the basis of your claim?
Consider seeking professional advice if you are not sure what your claims could be. It’s vital that you can clearly express what your claims are and what evidence you have to support these to give yourself the best chance of bringing a successful claim.
For example, if you think you might have been discriminated against then you can submit questions to your employer before you issue proceedings, to help determine whether you have a claim. Your employer’s answers might also help you to formulate the claim you are bringing and to present your evidence in the best way.
3. Who is your claim against?
It’s important to identify the correct name of your employer and, in some circumstances, it may be appropriate to bring a claim against more than one party. For example, in certain types of discrimination claims, you have the option to bring claims against named individuals as well as your employer.
4. Are you eligible to bring a claim?
Check that you have the necessary length of service and status before you bring a claim. For example, you usually need to have two years of continuous service to bring a claim for unfair dismissal (unless you can show you’ve been dismissed for a discriminatory reason) and you can only bring such a claim if you are an employee.
5. Is the Tribunal the right place for you to bring a claim?
In some circumstances it may be more appropriate to bring a claim in the Court rather than a Tribunal. For example, if the value of your breach of contract claim is likely to exceed £25,000, it may be more appropriate to issue your claim in a Court. This is because the compensation for breach of contract claims in a Tribunal are limited to a maximum of £25,000.
6. Has your claim been brought in time?
There are specific time limits for bringing an employment claim in the Tribunal or Court. Most claims need to be presented to a Tribunal within three months of the date they arise, and a Tribunal will only extend this deadline in very limited circumstances.
Where you participate in the ACAS Early Conciliation process (see next point below) the date will in most cases be extended. It’s important to note that there may be different deadlines to present different claims, or multiple allegations of the same nature (where there has been a series of incidents).
A breach of contract claim in the Court has a longer time limit and can be brought within 3 years of the breach in question.
7. Have you completed the ACAS Early Conciliation process?
Before you bring a claim in the Tribunal, you must follow the ACAS Early Conciliation requirements. The process involves completing an online form and then speaking to an ACAS conciliator (usually over a period of one month) to see if it is possible to settle your claim needing to issue proceedings in a tribunal.
The conciliator will speak to both you and your employer as part of this process. If your claim is not settled at the end of the process, ACAS will issue a certificate which must be referred to in any claim that you bring in a Tribunal.
8. Do you have evidence to support your claim?
Having documentary evidence to support what you have to say is essential to bringing a successful claim in either a Tribunal or Court (particularly where it is your word against someone else’s). Make sure you keep copies of any documents that may be relevant to a Tribunal or Court claim, even if those documents are more helpful to your employer rather than you!
9. Do you have any witnesses?
Are there any individuals who could help support your claim and are they prepared to be a witness for you? Being a witness would involve not only preparing a witness statement but also attending the Tribunal or Court hearing to give evidence.
10. Consider making a subject access request to your employer
By law, you are entitled to know and be provided with copies of any personal information that your employer holds about you. This information can be in various forms including documents, letters, emails and even WhatsApp messages.
Making such a request is extremely time consuming for employers but tactically it can also assist you in preparing your case before you issue proceedings in a Tribunal or Court.
11. Think about the likelihood of being successful in your claim
Consider what your motivation is for bringing a claim and what the potential weak points of your claim might be. Is your employer likely to be concerned by adverse publicity or the time it will take to deal with your claim, or do they take a hard line on settling claims?
Also think about what success means to you. Would you rather accept a sum of money from your employer before going through the time and cost of a Tribunal or Court process where you are not guaranteed a successful outcome?
Bear in mind that you might have a strong claim, but it might be of low value. For example, in a redundancy situation the employer may not have followed a fair and proper process but could argue that you would have been made redundant anyway, so your compensation would be limited to the time it would have taken the employer to follow a fair process.
There is also no point pursuing a claim if your employer is insolvent or unlikely to pay for other reasons. There will be some cases where you may have a good reason to pursue a claim even if there is little financial value in doing so. For example, unfair dismissal claims where the dismissal is likely to be career-ending, or a discrimination claim where your employment is ongoing.
12. What is your preferred outcome?
Financial compensation is the most common preferred outcome for most individuals in a Tribunal or Court, but there are other options to consider in some cases. For example, if you have been unfairly dismissed you may wish to seek reinstatement and return to work for your employer. There are also certain things that a Tribunal or Court cannot order such as a written apology or a reference.
If you are seeking financial compensation, be realistic about the likely amount you will receive if successful. Except for whistleblowing and discrimination claims, compensation is capped and reflects the financial loss you have suffered. You are also expected to take reasonable steps to mitigate your loss by looking for a new job and limiting out-of-pocket expenses to those which are reasonably incurred.
Keep a diary of all steps you take to try and find new employment and keep copies of all job advertisements applied for, applications made, and responses received to support your case.
ET1 claim form for tribunals
If you decide to bring a claim in a Tribunal, you must use the standard ET1 form (called a “Claim Form”) which is available to complete or download from the Justice website. There will be a similar form to complete to bring a claim in a Court. If your claim is accepted, your employer will usually have 28 days to file its defence.
What happens once your claim is accepted
Once your claim has been accepted, you need to make sure you comply with any orders from the Tribunal or Court. In both venues, there are several tasks that both parties will be ordered to complete.
- preparing a list of the documents relevant to the claim (and defence)
- producing a schedule of loss setting out the financial compensation you are seeking
- producing a joint bundle of documents
- preparing witness statements
Preliminary hearings are sometimes also listed in a Tribunal to deal with matters such as whether a claim is out of time or whether an individual is disabled (if they are bringing a disability discrimination claim). Make sure you diarise the dates of any hearings and let your witnesses know the dates too.
Will I get a decision at the end of the hearing?
If your claim gets to a hearing, then depending on how long a hearing lasts a Tribunal or Court will usually not make a decision on that day and will “reserve” its decision to a later date. This just means they take time after the hearing to consider their final decision. How long this takes will depend on the Tribunal or Court’s workload, but it can be several weeks or months before a decision is issued.
What happens once a decision has been made after a hearing?
Once a written decision has been sent to the parties, the unsuccessful party has a certain amount of time to appeal. Appeals are only allowed on points of law (and not because a party disagrees with the Tribunal or Court’s decision). Appeals in a Tribunal claim are made to the Employment Appeal Tribunal (EAT).
If you are successful with your claim, a Tribunal or Court will usually fix a further hearing to consider what compensation should be given to you.
How we can help you with a tribunal or court claim
If you need help or advice on a Tribunal or Court claim, our friendly team are on hand to help. We cut out the jargon and explain things in simple terms so that you can make a decision that’s based on the facts and right for you. You can find more information on our website on what to expect and the likely costs of an employment tribunal claim.
Get in touch with us today for an informal chat.
If you’re a business looking for advice on this topic we also have an employer’s guide to tribunals and court claims.