Many of us may have heard of an Employment Tribunal but not know anything about it. This blog will answer the question ‘what’s involved in Employment Tribunal proceedings?’ and provide guidance on next steps.
Contents
What’s involved in Employment Tribunal proceedings? The stages involved
1. Early conciliation notification
Before it is possible for someone (the Claimant) to lodge a claim at the Employment Tribunal, it is necessary to submit an early conciliation notification form. The early conciliation form should contain basic details of the claim(s). Following the notification, an ACAS conciliator will be allocated to the matter. The conciliator will then make contact with the Claimant and the organisation defending the potential claim (the Respondent). Depending on the circumstances, it may be possible to resolve the matter without the need for it to be escalated further, such as where the dispute relates to unpaid wages.
An important point to remember is that submitting an early conciliation form is not the same as presenting a claim form (that is the next step in the process).
The early conciliation process provides both sides with an opportunity to understand the position of the other. Obtaining professional advice, at the outset, would provide clarification on the strengths and weaknesses of the case, and offer guidance on next steps.
To answer the question What is early conciliation? Read our blog.
2. Claim or Response
To bring an Employment Tribunal claim it is necessary to complete an ET1 (further details of the claims being brought are often included in a separate document, referred to as particulars of claim). It is important that the claim is drafted with care as an Employment Tribunal judge may not permit amendments to be made to the claim. That being so, gaining professional advice, (before submitting a claim) may well be useful as it would ensure that any potential claims are captured fully. For further information on bringing an Employment Tribunal claim read our blog What is an ET1 form?
Once a claim has been submitted, the Respondent is required to respond to the allegations made, this is done in an ET3 (response) form, and associated grounds of resistance. To find out more about the ET3 form, read our blog What is an ET3 form?
Gaining assistance with drafting the response may well be useful in a number of ways such as highlighting issues, for example whether the claim (or elements of it) are out of time, and articulating the Respondent’s position regarding the claim.
3. Preliminary hearing
A preliminary hearing is likely to occur in complex cases such as where discrimination has been alleged. Depending on the circumstances, a preliminary hearing is either for case management purposes or to determine a particular issue.
Case management is likely to establish, for example, how long the final hearing should be, and set out the timeframe within which tasks should be completed in order for things to be ready for the final hearing.
As referred to above, a preliminary hearing may also be an opportunity for an Employment Judge to decide a particular issue prior to a final hearing. Examples of such issues may be whether the claim was brought in time or, if disability discrimination is alleged, whether the Claimant was a disabled person within the meaning of the legislation. To find out more about a preliminary hearing, read our blog What happens at an Employment Tribunal preliminary hearing? The remaining elements of this blog have been written on the basis that a claim is permitted to proceed to a final hearing.
4. List of issues
The list of issues are the matters which the Tribunal will be asked to determine at a hearing e.g. (to use the example above) was the Claimant a disabled person at the relevant time?
It is ultimately for the judge to decide what the list of issues should be but, where possible, it is helpful if the parties can agree a list of issues before the hearing.
5. Schedule of loss
The schedule of loss is a document which essentially sets out the value of the claim. Both parties would usually provide one. The compensation that can be claimed would obviously depend on the nature of the claims being brought and the document should always be tailored to the specific circumstances.
6. Disclosure of documents
Each side is required to disclose to the other any material which is relevant to the issues in the case. Once all the material is agreed, it will all be combined into one document, commonly referred to as the bundle. It is crucial that all relevant material is included in the bundle because a Tribunal would be unable to consider material which is not in the bundle, and may not permit material to be added to the bundle at a later stage.
7. Witness statements
A witness statement is the person’s evidence before the Employment Tribunal. It is their account of what happened. Care needs to be taken when drafting a witness statement because a witness can only give evidence on matters referred to in the statement. In such circumstances, a witness statement needs to capture all the issues which are being determined by the Tribunal, which that person is able to give evidence about. It is important to remember that if a witness does not attend only limited weight may be attached to that evidence, because the other side is unable to put questions to the person (cross examine). Therefore, it is important to check when witnesses are not available before a hearing date is fixed.
The Tribunal may set out requirements, such as word limits, so it is important to comply with those directions.
8. Alternative dispute resolution
Depending on the circumstances, ADR may be considered appropriate by the judge. This may be because the parties have signalled a desire to participate in judicial mediation, such as during a preliminary hearing, or because of the length of time the final hearing is listed for. Alternative dispute resolution provides an opportunity to resolve the dispute without it progressing to a final hearing. If an agreement cannot be reached, the case would progress to a final hearing. For more information on alternative dispute resolution, read our blog What is a COT3 agreement?
9. The final hearing
The final hearing is when the witnesses give evidence, and the Tribunal determines the outcome. As has been referred to above, there is much that needs to be done before the final hearing, and the importance of those tasks should not be forgotten.
It may be that the issue of liability (whether the claims succeeded or not) and remedy (the amount of compensation that the claimant should receive) are considered at separate hearings or it may be that both elements are dealt with at the same hearing.
Plotkin & Chandler works exclusively in the areas of HR and employment law and assists both employees and employers.
If you are contemplating (or have brought) an Employment Tribunal claim, or you are an organisation defending one, we have expertise in advising on all aspects of the Employment Tribunal process and can provide representation when needed.
Please contact us on 020 3923 8616 or via email on info@plotkinandchandler.com to discuss your needs and the ways in which we can help.
