Employment tribunal claims – the basics

Employment tribunals hear cases and make decisions on employment issues such as unfair dismissal, redundancy payments, discrimination and a range of claims relating to wages and other payments.

Although an employment tribunal is not as formal as a court, it must comply with statutory rules of procedure and act independently.

This guide looks at why employment tribunal claims arise, how to make and respond to claims, and how to avoid claims going ahead or even arising in the first place.

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Common reasons for employment tribunal claims

The best way to avoid someone making an employment tribunal claim against you is to avoid any disputes arising in the first place. Employees – and in some cases other types of worker – may make an employment tribunal claim over issues such as:

• equal pay
• unfair dismissal
• redundancy pay
• discrimination on the grounds of sex, race, disability, age, religious belief or sexual orientation
• breach of contract
• working hours
• unauthorised deductions from wages
• written statement of terms and conditions
• failure to inform and consult in a redundancy or business transfer situation

Jobcentre Plus offers a wide range of services to support employers who want to help disabled people stay in work and use their skills and talents. For more information, see our guide on support if you employ someone who is disabled.

You can help to avoid disputes by:

• giving each employee a written statement of main terms and conditions of employment – this is a legal requirement
• having clearly written policies and procedures
• being prepared to consider employees’ grievances, or raise disciplinary issues with them, informally and at an early stage wherever possible
• having clearly written policies and procedures where matters need to be dealt with formally

You should:

• communicate these policies and procedures to your staff
• ensure that your staff fully understand them
• follow them consistently when the need arises

As an employer, you should also try to keep up to date with current employment law and any planned changes in legislation.

This may be time-consuming, but it’s less time-consuming – and less expensive – than appearing before an employment tribunal.

If you would like to be kept informed of any new employment regulations that might arise, you can find out about new and updated regulations affecting your business by using our regulation update service.

If a dispute does arise, you should try to resolve it as early, quickly and informally as possible – certainly before the employee even considers making a tribunal claim.

For advice on how to deal effectively with workplace disputes, see our guides on disciplinary procedures, hearings and appeals and handling grievances.

If – despite your best efforts to resolve the issue – an individual is likely to make a claim against you, they or you can ask Acas to conciliate as an alternative to going ahead with the claim. See the page in this guide on Acas conciliation.

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The employment tribunal claim procedure

Generally, an individual must present their employment tribunal claim within three months of either:

• their employment ending
• the issue that is the subject of the claim

The tribunal can reject claims for various reasons, eg because the claim is made out of time (late) or doesn’t contain enough information.

See the page on making an employment tribunal claim in our guide on employment tribunal claims – the process.

If the tribunal accepts a claim against you or your organisation, it will send you a copy of the claim form (form ET1) usually within three days of receipt. It will also send you a blank response form (form ET3).

See the page on dealing with notification of an employment tribunal claim in our guide on employment tribunal claims – the process.

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Preventing an employment tribunal claim from reaching an actual hearing

If a dispute reaches the point where an individual makes an employment tribunal claim, you can still avoid the expense and stress of an employment tribunal hearing by resolving the issue using various methods.

You can call the Acas Helpline on Tel 08457 47 47 47. They will be able to provide you with information on the options available to you for resolving your dispute before a tribunal claim is lodged.

Besides Acas, many legal and professional organisations can help you resolve workplace disputes. Bear in mind that most of these organisations will charge for their services.

Acas conciliation

If an employee has made – or is likely to make – an employment tribunal claim, Acas may be able to help you try to resolve the matter before it reaches a tribunal hearing.

Acas conciliators:

• are independent, so don’t represent either you or the claimant
• have no power to impose a solution, or to judge the rights and wrongs of the case
• will simply try to help you and the claimant to reach a voluntary agreement to resolve the matter

See the page in this guide on Acas conciliation.

Acas arbitration

Acas arbitration – another alternative to an employment tribunal hearing – is only available for claims about unfair dismissal or flexible working.

An independent arbitrator hears the case and delivers a legally binding decision in favour of one party. Arbitration is a voluntary process, available where both parties agree to sign up to the scheme.

The benefits of Acas arbitration include:

• a speedy, private, informal hearing
• no cross-examination
• limited grounds for review of the arbitrator’s decision

Read about Acas arbitration on the Acas website- Opens in a new window.

Mediation

Mediation is a more informal way of resolving workplace disputes. It involves a neutral mediator helping you and the employee reach an agreement. The process is voluntary and confidential.

For more information, see the page in this guide on mediation.

Compromise agreements

A compromise agreement is a legally binding agreement offering the employee compensation in exchange for not bringing – or for withdrawing – a tribunal claim.

Reaching such an agreement will generally be quicker and will not attract the publicity that might arise by going to a tribunal to resolve a dispute.

For a compromise agreement to be valid, the employee must receive advice from a relevant independent legal adviser before signing. The employer is usually expected to pay the legal fees of both parties. You may find this to be a cheaper option than defending a long tribunal case, as even if you win you will generally have to pay your own legal costs – which can be significant.

Note that you can only use a compromise agreement to settle the immediate complaint(s) – the agreement cannot be worded to cover every single employment rights claim that the claimant could possibly bring in future.

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Acas conciliation

Acas may be able to help you resolve the matter before it reaches an employment tribunal hearing. This is a process known as ‘conciliation’.

This is an impartial and confidential service that is free to users and entirely voluntary – it can only go ahead if both you and the claimant (or potential claimant) agree.

You and/or the claimant may decide at any stage of the process that you want to be independently advised and/or represented. If this is the case, the Acas conciliator will conduct any subsequent discussions with the representative(s).

ET1 conciliation

When an employment tribunal receives a claim against you, it will send a copy of the ET1 claim form to Acas at the same time as it is sent to you. For more information on procedure and the purpose of the ET1 form, see the page on making an employment tribunal claim in our guide to employment tribunal claims – the process.

The conciliator will contact you and the claimant – or your and/or their representative, if appointed – to discuss the claim and explore the potential for settlement.

These discussions develop in different ways according to the circumstances of each individual claim. However, they usually involve the conciliator:

• explaining to you and the claimant what potential legal issues might arise in the claim, and pointing out how tribunals tend to look at similar situations
• outlining the procedures that tribunals follow
• discussing what you and the claimant would each like the outcome to be and whether there are any obvious grounds for settlement
• acting as a neutral channel of communication
• helping you and the claimant to draw up a legally binding settlement that you both agree with, to avoid the need for a tribunal hearing

The conciliator will be available to help the employer and employee to resolve the claim should they both wish to do so, by way of an agreed settlement, at any time before the matter is finally determined by the employment tribunal.

Pre-claim conciliation

This type of conciliation applies in situations where you have been unable to resolve the issue, and an individual is likely to make a claim against you but hasn’t yet done so.

They or you can ask Acas to conciliate as an alternative to going ahead with the claim. It works just like ET1 conciliation, and is free, confidential and impartial.

The aim of pre-claim conciliation is for you and the potential claimant to agree to a legally binding settlement that means they cannot subsequently raise the issue at the employment tribunal.

If you want to know whether or not pre-claim conciliation is suitable for your particular circumstances, you can call the Acas Helpline on Tel 08457 47 47 47.

You can also find out about pre-claim conciliation on the Acas website- Opens in a new window.

Benefits of conciliation

Whether it takes place before or after an individual submits a claim, conciliation may prove to be more beneficial than having the matter decided by an employment tribunal because it:

• Saves time and money. Responding to a tribunal claim takes a great deal of time, and if there’s a tribunal hearing, you may well end up paying for legal representation.
• Minimises stress. Being involved in a tribunal claim can put pressure on both the employer and the employee, and many people find defending a legal claim stressful.
• Offers the prospect of a quick solution. Many cases can be dealt with in a few telephone calls or a short meeting, with agreed settlements implemented very soon afterwards.
• Produces a win-win outcome. In a tribunal, someone always loses – and even if you ‘win’, you will not always get what you want from the process.
• Leaves you and the claimant in control. You reach an agreement that has been agreed by both of you, while in the tribunal, the decision is taken out of your hands.
• Resolves the dispute to suit what both you and the claimant want, rather than what the tribunal has the power to award. For example, you could agree to provide good references, which might be more helpful to the claimant than a large cash sum.
• Avoids the formality of a hearing. Although the tribunal is more informal than most courts, most people are unfamiliar and uncomfortable with legal processes.

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Mediation

Mediation is a more informal way of resolving workplace disputes. It involves a neutral mediator helping you and the employee reach an agreement. The process is voluntary and confidential.

Mediation is not normally legally binding unless both parties choose to confirm the outcome in a compromise agreement.

You could appoint someone from within your business as a mediator. However, you should consider finding an external mediator so that both you and the employee can trust them to be completely impartial.

There are a number of commercial mediation providers. Some of these are registered members of the Civil Mediation Council (CRC) (for England and Wales) or areon the Scottish Mediation Register managed by the Scottish Mediation Network.

These providers declare that they meet certain standards covering training, practice development, codes of conduct, complaints handling and indemnity insurance.

Find a mediator in Scotland specialising in workplace disputes on the Scottish Mediation Network website- Opens in a new window.

Note that mediation providers charge for their services.

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Glossary of terms relating to employment tribunal claims

Here are some plain English definitions of employment tribunal terms and jargon that you may come across:

• case management discussion – a private meeting held before an employment judge to decide on matters such as the date, time and length of the hearing
• claim – the written complaint against you, set out on an ET1 form, sent by a claimant to the employment tribunal
• claimant – the individual – usually an employee or ex-employee making a claim to an employment tribunal
• employment judge – a legally qualified person with knowledge of employment law and business experience who directs an employment tribunal hearing
• employment tribunal – the panel of people who listen to evidence and reach a decision during a hearing
• ET1 – the form the claimant fills in to make a claim
• ET1 conciliation – the process whereby Acas tries to help both parties settle an employment tribunal claim before it reaches a hearing
• ET3 – the form the respondent fills in to give their response to the claimant’s claim
• hearing – the proceedings during which both parties present their evidence and defend their claim in front of the employment tribunal, after which it reaches its judgment
• HM Courts and Tribunals Service (HMCTS) – the organisation that administers employment tribunal claims 
• HMCTS – see HM Courts and Tribunals Service
• judgment – the employment judge’s or employment tribunal’s decision on the outcome of the claim, ie whether it succeeds or fails, or on a matter relating to the proceedings
• lay members – people with experience of employment relations, either from an employers’ standpoint, or from a trade union or employees’ standpoint, who sit on an employment tribunal alongside an employment judge
• party – either the claimant (plus their representative if they have one) or respondent (plus their representative if they have one)
• pre-claim conciliation – the process where Acas tries to help an employee and employer to settle a dispute before the employee makes a claim
• pre-hearing review – a meeting held in public before an employment judge to decide preliminary matters and which may result in a claim or part of a claim being struck out without the need for a full hearing
• reasons – an explanation of why or how a particular judgment was arrived at
• representative – a person who acts on the behalf of either the claimant or respondent during conciliation, case management discussions, pre-hearing reviews and the employment tribunal hearing itself
• respondent – the party – usually an employer – against whom the claim is made against by the claimant
• response – the written reasons why the respondent will (or will not) be defending a claim

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CASE STUDY

Here’s how we use mediation to resolve workplace disputes

Cocoabean is a boutique recruitment consultancy based in Norwich and Ipswich. The business has experience in sectors such as office accounts and finance, insurance, sales and marketing, IT and media, HR and energy.

Founded in 2006 by Mary Pratt, the business now employs 11 staff and is a proud winner of recognised awards, including a Barclays Startups award for best service provider. In 2008, Cocoabean also received two Norfolk Recruitment awards in the categories of Judges’ Special Recognition and Best Team.

Listen to the audio, or read the transcript below;

Transcript

“Hi. My name’s Mary Pratt, director of Cocoabean Recruitment, founded in 2006.”

“Recruiting quite highly competitive staff, we have had to ensure we have processes in place to minimise any conflicts, and we’ve used mediation to help with these disputes. Workplace disputes are very common in any business. When I founded Cocoabean, the main thing was for me to create a harmonious environment where these can be minimised.”

“At the end of the day, every human being has their own values and goals, their own motivators, but any employee should be fully aware that they need to respect each other’s opinions.”

“To me, conflict resolution is equally as important as sales, marketing and operations divisions. In my opinion, the most common causes are lack of open communication within the office, through to the top ones – jealousy and back-stabbing. At Cocoabean, we put things in place such as strong team networking and strong team management meetings where everyone’s voice is heard.”

“I believe that within any business there should be no hierarchy, everyone is equal. At the end of the day, mediation is a voluntary process. We can pull two or more people together, listen to their conflicts, and where they can then come up with the answer. It’s a win-win situation.”

“The type of conflict which you can resolve through mediation include areas such as gossip within the workplace and differences of opinions, through to general operational processes. At Cocoabean, with any workplace disputes we would ensure it’s taken off site into a neutral area where both parties can listen to each other and then they can hopefully come up with a resolution.”

“The key for any good manager in my eyes is that there is no judgement, other than listen to both parties but always maintain control of the meeting to ensure that it does not escalate.”

“Any manager will have mediation training as part of their induction programme as being a leader. It is absolutely imperative for me to know that any managers we employ have the correct listening skills where they do not dodge or cover up any conflicts which arise within the office. However, anyone who joins our business also has to understand that they are coming on board and they must respect each other’s opinions. With this harmonious approach, we have minimised conflict within our business.”

“Disputes should be actioned immediately. The long-term consequence of not actioning these or just dodging the issue is lack of productivity, low staff morale, and escalated issues. If any staff have a personal issue, if it impacts on the business, our managers would intervene straight away. After all you’re dealing with two or more people who are generally hot-headed and all believe that they are correct. So the key to it is to ensure that any managers have excellent skills of listening to ensure a win-win situation.”

“Should there be a dispute, anything would be taken off-site to a neutral environment where confidentiality would be stressed at the beginning of any session. As we have said before, mediation is all about a voluntary process between two or more people. If for any reason one party does not wish to participate, then obviously mediation is not going to work. On a more serious note, if an allegation such as harassment is made, again this would not be appropriate.”

“At Cocoabean, we ensure we have weekly and monthly sessions where the managers can get to speak to the employees on a one-to-one basis providing an open forum. Here, we can review current conflicts but also put old conflicts to bed.”

Disclaimer: The material in this audio/video may include the views or recommendations of third parties, which do not necessarily reflect the views of Kraken, or indicate its commitment to a particular course of action. We assume no responsibility or liability arising in respect of any such third party material.

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