The short answer is yes, you can bring a claim in the Employment Tribunal while you are still employed. There is no legal requirement to resign or be dismissed before initiating proceedings, and in many cases it is both appropriate and necessary to act while still in post, particularly due to strict statutory time limits that apply to employment claims.
One of the most critical factors influencing whether an employee should pursue a tribunal claim whilst still employed is the applicable time limit. Most Employment Tribunal claims must be brought within three months less one day from the negative treatment (detriment) alleged. However, it is important to distinguish between a one-off act and an ongoing situation. A single, isolated act—such as a one-off verbal remark—may trigger the time limit from the date that act occurred. By contrast, where there is an ongoing state of affairs or an act extending over a period, such as continuing discriminatory treatment or a pattern of harassment, the time limit may run from the last act in that series. This distinction can be critical, but it is often complex and fact-sensitive, which is why employees should act cautiously and avoid assuming they have more time than they do.
A further area where time limits require careful consideration is in claims involving a failure to make reasonable adjustments. In these cases, the issue is often characterised as an omission rather than a positive act. The question then becomes: when does time begin to run? Where an employer does something that is inconsistent with the duty to make reasonable adjustments, time will generally run from that notional date—namely, the point at which the employer’s conduct demonstrates a failure to comply with the duty. However, where the employer does not take any step that is clearly inconsistent with the duty, the position is more nuanced. In those circumstances, time may begin to run at the point when it would be reasonable for the employee to conclude that the employer will not comply with its obligation, based on the facts known to them at the time. This introduces an element of objective assessment, viewed through the lens of what the employee reasonably understood.
Depending on the circumstances, it may be entirely reasonable for an employee to reach that conclusion whilst still employed. For example, where requests for adjustments have been ignored, repeatedly delayed, or met with vague or non-committal responses, an employee may justifiably conclude that the employer does not intend to comply. If that point is reached, the time limit may already be running, even though the employment relationship continues. This means that it may be necessary to submit a claim relating to a failure to make reasonable adjustments whilst still at work in order to preserve the claim within the applicable time limit.
Time limits in this area are complex and highly fact-sensitive. This blog is intended to provide a general overview. It is recommended that professional advice is sought at an early stage to ensure that any potential claim is identified and brought within the required time frame.
It is also important to recognise that, in some situations, it may be necessary to bring more than one claim. For example, an employee may pursue a claim for a failure to make reasonable adjustments whilst still employed in order to comply with the applicable time limit. If that same employee is later dismissed, this may give rise to a separate and distinct claim, such as unfair dismissal or discrimination arising from disability, with its own time limit running from the date of dismissal. Each claim will be assessed in relation to its own time limits. For more information on lodging an Employment Tribunal claim, read our blog What is an ET1 form?
A common concern among employees is whether bringing a claim against their employer will damage the working relationship. While this is an understandable concern, the law provides protections against victimisation. The bringing of an Employment Tribunal claim is a protected act, and it is unlawful for an employer to subject an employee to a detriment because they have done so. If an employee is treated badly and that treatment is influenced by the fact that they have brought a claim, this may give rise to a claim for victimisation.
It is also important to understand that compensation can still be awarded even where the employee remains employed. There is sometimes a misconception that financial remedies are only available after employment has ended. This is not correct. In discrimination claims, for instance, an employee may be awarded compensation for injury to feelings. This is a non-financial loss reflecting the emotional distress caused by the discriminatory conduct. The fact that the employee continues to work for the employer does not preclude such an award.
In addition to injury to feelings, employees may recover financial losses where applicable. For example, if discrimination has resulted in reduced bonuses or other financial detriment, those losses can be quantified and claimed. Similarly, in cases involving unlawful deductions from wages, the tribunal can order repayment of sums owed. For information on deductions from salary, read our blog deductions from my salary without my consent – what can I do?
It is also worth noting that tribunals can make recommendations in discrimination cases. These recommendations are not limited to the individual claimant but can extend to the wider workforce. For example, a tribunal may recommend that an employer implements training programmes or reviews its policies to prevent future discrimination. Such recommendations may be particularly important for those who continue to work for that employer.
From an employer’s perspective, receiving a tribunal claim from a current employee can be challenging. Employers must balance the need to defend the claim with maintaining a functioning working relationship. This often requires careful management, including ensuring that the employee is not subjected to any detrimental treatment as a result of the claim.
It is important to emphasise that each case is fact-specific. Whether it is appropriate to bring a claim while still employed will depend on a range of factors such as the nature of the complaint, the evidence and the employee’s personal circumstances. There is no one-size-fits-all answer, but you can take your employer to tribunal whilst still employed.
Plotkin & Chandler works exclusively in the areas of HR and employment law.
We have expertise in advising on all aspects of bringing an Employment Tribunal claim. Whether you need advice regarding engaging with early conciliation, you require assistance to draft documentation to submit to the Employment Tribunal (such as the ET1), or you are seeking representation at an Employment Tribunal, we can help.
To discuss your requirements, and the ways in which we can help, call us for a no obligation consultation on 020 3923 8616 or email us at info@plotkinandchandler.com
