Employment Tribunal Services for Employees

There are lots of circumstances where you may feel you want to bring a claim against your employer including:

• Where your employer has done something so bad that you feel it’s the equivalent of dismissing you and that you can no longer continue to work for them. This is known as constructive dismissal. If you feel that you may have a claim for constructive dismissal it is very important that you take advice as soon as possible as delaying a resignation may weaken your case, but equally resigning when you have a weak or no case will only result in you having no job and no income.
• Where your employer has dismissed you. This can generally give rise to two types of claim: wrongful dismissal (where the employer hasn’t paid you your notice pay) or unfair dismissal (usually where you have two years or more service and your employer has dismissed you without a fair reason or without following a fair procedure).
• Where your employer or a colleague has treated you less favourably because of a protected characteristic, for example: sex, age, disability, race, religion, pregnancy/maternity or sexual orientation, or where you have been treated unfavourably because of pregnancy or maternity.
• Where you have been dismissed for raising a health and safety concern or for whistleblowing.
• Where you are being paid less than a colleague of the opposite sex who carries out the same role as you or a role that is equal to it. This is known as an equal pay claim.
• Where your employer has paid you less than they should have.

If you are a senior employee who owns shares or has other interests in your employer’s business there may be additional considerations including your position as a director or shareholder.

We can support you through any of these situations and help you to secure the right outcome.

What outcome might there be if I win a tribunal claim?

Many people assume that employment tribunals can only award compensation. In fact, if you have been dismissed you can also seek an order for reinstatement or re-engagement i.e. the tribunal can order the employer to take you back either in the same role or another role.

Compensation for a successful wrongful dismissal will usually be an amount the employer has failed to pay you, for example, notice pay.

Compensation for a successful unfair dismissal claim could consist of:

• A basic award – this is calculated in the same way as redundancy pay and results in you receiving a week’s pay (capped at £538) for each complete year worked for the employer. Only the most recent twenty years’ service are taken into account. A multiplier of 1.5 applies for any complete years worked over the age of 41 (so you get a week and a half’s pay for those years) and a multiplier of 0.5 applies for complete years worked under the age of 22 (so you only get half a weeks’ pay for those years).
• A compensatory award – aimed at compensating you for any losses suffered as a result of losing your job. This is usually capped at the lower of either a year’s gross pay or a specific amount set by the Government each April (currently £88,519) but there is no cap if the dismissal is for whistleblowing or a health and safety reason.
• Compensation for failing to allow you to be accompanied to a hearing – capped at two weeks’ pay (for this purpose a week’s pay is capped by an amount set by the Government each year).
• Compensation for failing to issue you with a contract of employment – either two or four weeks’ depending on what the tribunal thinks fair (again a week’s pay is capped at an amount set by the Government each year).

Compensation for a successful whistleblowing claim (where there has been a dismissal) is calculated in the same way, but there is no cap on the compensatory award. Where a whistleblowing claim relates to you suffering a detriment (rather than being dismissed) the award can include an award for injury to feelings (see below).

There can be additional awards if a dismissal is found to be for an automatically unfair reason.

Compensation for discrimination can be made up of:

• Loss of earnings. The purpose of compensation is to put you in the same position you would have been in had there not been an act of discrimination. This type of compensation can be for loss of income as a result of losing a job, but could also be to compensate you for losses suffered whilst remaining with the employer, for example, for a bonus or pay rise you didn’t receive because of your gender, age, race or another protected characteristic
• Loss of pension rights
• Other financial loss. This could include a loss of benefits in kind or expenses.
• An award for injury to feelings. This aims to compensate you for the impact an act of discrimination has had. There are guidelines for how much compensation can be awarded known as the Vento guidelines. These set out three bands/ranges for awards:
  • The lower band – For less serious cases, such as where the act of discrimination is an isolated or one-off occurrence
  • The middle band – For serious cases, which do not merit an award in the highest band
  • The upper band – For the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of a protected characteristic. Only in “the most exceptional case” should an award for injury to feelings exceed the top of this band.These amounts are increased each April by the Presidents of the Employment Tribunal.  The current amounts can be found here.

The tribunal will take into account a number of factors when determining the level of compensation for injury to feelings including: how vulnerable you are (including any medical condition you are suffering from), the degree of hurt, distress or upset caused (for example any evidence of panic attacks, stress or similar), the impact on your career, the position of the person who was found to be discriminating, the seriousness of the treatment and the way in which the employer dealt with any complaint you raised.

Calculating compensation in equal pay claims is complex but again the intention is to put you in the position you would have been had you been paid the correct rate.

It is worth noting that where you are awarded compensation the tribunal can reduce the level of the compensation to take into account your behaviour (known as contributory fault) or where a dismissal has been found unfair because of a procedural failing it can reduce compensation taking into account the impact following a fair procedure would have had.

A tribunal is also able to increase compensation by up to 25% if an employer has failed to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures. It can decrease an award by up to 25% if you failed to follow the procedures (for example by failing to raise a grievance or appeal against your dismissal).

How a claim is brought

You need to bring most employment tribunal claims within three months of the date of the act complained of. For example, if you were dismissed on 3rd January you would usually have to start the process by 2nd April.

The first stop in this process is to contact the ACAS Early Conciliation service and inform it that you are considering bringing a claim. ACAS will discuss with you the background of the claim and the outcome you want (e.g. compensation). They will then contact your employer (or former employer) and ask whether they want to discuss a possible settlement. If the employer agrees to have discussions ACAS can spend up to six weeks trying to resolve the issue. If it is resolved both parties will usually sign up to what is known as a COT3 agreement which sets out the terms of the settlement and usually states that you can’t bring a claim against your former employer.

If ACAS Early Conciliation doesn’t result in a resolution of your complaint ACAS will issue you with a certificate which includes a reference number which you need in order to bring a tribunal claim. Once you have been issued with the certificate you will have a short period of time to bring the tribunal claim. The amount of time will depend on when you first contacted ACAS and how long you spent going through Early Conciliation. If you don’t issue the claim at the tribunal within the time limit it is very likely you won’t be able to bring a claim, although there are limited circumstances where the tribunal may allow you to register a claim outside of the time limit.

In order to issue a tribunal claim you will need to complete what is known as an ET1 form (which asks you for various pieces of information about you and the reasons for your claim) and lodge it at the tribunal within the time limit. It’s important that the form clearly sets out the claims you are bringing and it’s sensible to take advice on what to include or ask an experienced lawyer to draft it for you.

After the tribunal receive the ET1 form they will send you an acknowledgment and a copy of the form along with the response form (known as an ET3) will be sent to your employer. They will need to lodge the response within 28 days of receiving it.

Depending on the nature of the claim, either after lodging the ET1 form or after the employer has lodged the ET3 you will receive what are known as “directions” from the tribunal these tell you and the employer:

• When you have to send each other lists of the evidence you have which you believe is relevant to the claim (this includes evidence which is damaging to your case)
• When you have to agree which documents will be included within a bundle of documents to be used at the hearing
• When you have to exchange witness statements with the other side i.e. send the other side a statement setting out what a witness believes happened and when, ideally with reference to any relevant documents in the agreed tribunal bundle.

A date for the hearing will also be provided.

In more complex cases and/or cases where medical evidence is required there may be what is known as a preliminary hearing. This is where a judge meets the parties to agree the timescales for the directions, and/or to discuss/decide a preliminary point, for example, whether you are disabled and therefore able to claim disability discrimination.

What happens at the hearing?

Depending on the nature of the claim it may be heard by a judge sitting alone or by a judge accompanied by two “lay people” (one from an employee background, the other from an employer one), referred to as a panel. If the claim is heard by a panel, each member of the panel has an equal say in the outcome.

Prior to the hearing starting the employer and employee wait in separate rooms. Whilst they are waiting a tribunal clerk will visit them and ask them to provide copies of the tribunal bundle and witness statements (it is usually the employer’s responsibility to provide these). These documents will then be provided to the judge or panel. In most cases the judge/panel will not have seen the documents before then. If the documents are lengthy the parties may be informed that there will be a delay whilst the judge/panel review the documents.

When the hearing begins the judge will address the parties and may confirm the issues in dispute. Each side will then set out their case, which involves their witnesses individually giving evidence. The witnesses start this process by swearing that they will tell the truth. Whilst giving evidence the witness will sit at a separate table where they have a copy of their statement and the tribunal bundle. Usually they will not be required to read out their statements, but they will be asked to confirm it is their statement and that it is correct. They will then be asked questions by the other side. As well as being asked questions by the other side, witnesses can be asked questions by the judge/panel, and their own representative can go on to ask them some questions (if it may help their case) in certain circumstances. Which side gives evidence first will depend on the nature of the claim. When one side has given all of their evidence it will be the turn of the other side’s witnesses.

After all witness evidence has been provided each side will usually be given an opportunity to summarise their case and why they should win, known as “closing submissions”. In some circumstances the tribunal may ask that these are provided in writing.

The next step will be for the judge/panel to consider the outcome which they will then present to the parties. Quite often the tribunal does not have time to give its judgment on the same day as the hearing has taken place. If that’s the case the decision will normally be sent out in writing.

If your claim is successful the tribunal will go on to consider how much compensation you should receive. Employees are under a duty to mitigate their loss, which means they should seek other work. If an employment tribunal believes that an employee should have got another role sooner than they did they may only award compensation for that period of time, rather than the whole period that the employee was unemployed for. For that reason it’s sensible to retain copies of all of your job applications and rejections so you can show how hard you tried.

Can I settle a claim once the tribunal process has started?

A tribunal claim can be settled at any time, and quite often is even settled on the day of the tribunal hearing.

Timescales

The time that it takes from taking your initial instructions to the final resolution of your matter depends largely on the stage at which your case is resolved.

If a settlement is reached during pre-claim conciliation, your case is likely to take 4-6 weeks. If your claim proceeds to a Final Hearing, your case is likely to take 18-52 weeks.

This is just an estimate and depends on various factors, including the availability of Tribunal time. We will of course be able to give you a more accurate timescale once we have more information and as the matter progresses.

Key milestones

There are key milestones, which may vary according to individual circumstances. They may be as follows:

• Preparing your claim
• Reviewing and advising on the response from other party
• Exploring settlement and negotiating settlement throughout the process
• Preparing or considering a schedule of loss
• Preparing for (and attending) a Preliminary Hearing
• Exchanging documents with the other party and agreeing and preparing a bundle of documents
• Taking witness statements, drafting statements and agreeing their content with witnesses
• Reviewing and advising on the other party’s witness statements
• Agreeing a list of issues, a chronology and/or cast list
• Preparation and attendance at Final Hearing, including instructions to a barrister

Our fees for bringing claims for unfair and wrongful dismissal are based on three bands, which we will be happy to discuss with you.

We will advise you of the funding options available to you, for example as an individual you may have insurance which can cover your legal fees. (e.g. legal expenses cover included in your home insurance).

There are various items we will consider when deciding what pricing band your case falls into. We will make this assessment and inform you of the relevant fees at the earliest opportunity.

Factors that may influence this include the need for:

• If it is necessary to make an application to amend your claim or to provide further information about an existing claim
  Making or defending a costs application
  Complex preliminary issues such as whether you have a disability (if this is not agreed by the parties)
  The number of witnesses and documents
  If it is an automatic unfair dismissal claim e.g. if you are dismissed after blowing the whistle on your employer
  If there are allegations of discrimination linked to the dismissal

Case Type Range of Costs:

• A basic award – this is calculated in the same way as redundancy pay and results in you receiving a week’s pay (capped at the rate set out here) for each complete year worked for the employer. Only the most recent twenty years’ service are taken into account. A multiplier of 1.5 applies for any complete years worked over the age of 41 (so you get a week and a half’s pay for those years) and a multiplier of 0.5 applies for complete years worked under the age of 22 (so you only get half a weeks’ pay for those years).
• A compensatory award – aimed at compensating you for any losses suffered as a result of losing your job. This is usually capped at the lower of either a year’s gross pay or a specific amount set by the Government each April (capped at the rate set out here) but there is no cap if the dismissal is for whistleblowing or a health and safety reason.
• Compensation for failing to allow you to be accompanied to a hearing – capped at two weeks’ pay (for this purpose a week’s pay is capped at the rate set out here).
• Compensation for failing to issue you with a contract of employment – either two or four weeks’ depending on what the tribunal thinks fair (again a week’s pay is capped at (capped at the rate set out here).

Disbursements

Disbursements are costs related to your matter that are payable to third parties, such as court fees. We handle the payment of the disbursements on your behalf to ensure a smoother process.

Barrister’s fees, which include preparation, are estimated between £750 (+VAT) to £1,500 (+VAT) per day (depending on experience of the Barrister) for attending a Tribunal Hearing.

Exclusions and factors which may make a case more complex

In the event that the issues become more complex, we will inform you at the earliest opportunity and a clear estimate of any extra costs will be provided.

Factors that may lead to an increase in cost include:

• If it is necessary to make or defend applications to amend claims or to provide further information about an existing claim
• Making or defending a costs application
• Complex preliminary issues such as whether you have a disability (if this is not agreed by the parties)
• The number of witnesses and documents
• If it is an automatic unfair dismissal claim e.g. if you are dismissed after blowing the whistle on your employer
• If there are allegations of discrimination linked to the dismissal