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Claims in the Employment Tribunal

This short article sets out the procedure used in the employment tribunal for bringing and defending claims.

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Bringing the claim – the ET1

People wishing to make a claim in the employment tribunal (called ‘Claimants’) must file a prescribed claim form called the ET1. You can check your local Employment Tribunal here http://www.justice.gov.uk/contacts/hmcts/tribunals/employment.

The ET1 form is now handled by the online portal and this can be started here: https://www.employmenttribunals.service.gov.uk/employment-tribunals The online portal will automatically submit the ET1 to the correct Employment Tribunal.

You can find a copy of the ET1 to download and fill in by hand here. If you plan to submit the ET1 by post in England and Wales you will need to send this to the Leicester processing centre:

Employment Tribunal Central Office (England & Wales),  
PO Box 10218  
LE1 8EG 

It is only possible to deliver a claim by hand to certain Tribunal offices, a list of these can be found on page 7 of this leaflet.

Prior to raising a claim in the tribunal, you should first check whether the tribunal has jurisdiction to hear your claim. You can find this information and guidance about the appropriate tribunal in which to bring your claim from the employment tribunals service website at http://www.justice.gov.uk/tribunals/employment/claims/jurisdiction

Time limits in the tribunal are extremely strict. Most claims must be raised within three months less one day of the date of the act complained of, which could be a dismissal or some other unlawful act, and are very rarely accepted by the tribunal if they are not submitted in time. If you believe that you are coming close to your limitation period it is important that you seek legal advice as soon as is possible.

Responding to a claim

Once a claim has been submitted, the tribunal will send a copy of the ET1 to the employer (called ‘the Respondent’).

The Respondent will be given 28 days to file a response form called an ET3 at the tribunal. The ET3 should confirm whether or not the Respondent admits liability, and if not, should set out the grounds of their defence. The deadline for filing the ET3 may be extended at the discretion of the tribunal if the Respondent requests it.

The ET3 form is now handled by the online portal and this can be responded to here: https://www.employmenttribunals.service.gov.uk/employment-tribunal-response The online portal will automatically submit the ET3 to the correct Employment Tribunal.

You can find a copy of the ET3 to download and fill in by hand here  If you plan to submit the ET3 by post you will need to send this to the Employment Tribunal who sent it to you.

There are no normal fees for an employer to pay to respond to a claim. However, if an employer wishes to make a counter-claim (known as an employer’s contract claim) then the fee for submitting this will be £160.00. If the fee is not paid then the counter-claim will be struck out.

Default Judgment

If a claim is not defended or the response is not accepted because it is not supplied on an ET3 form then the Tribunal will list the claim for a remedies hearing, at which the tribunal will decide what remedy is appropriate and how much compensation, if any, should be paid to the Claimant.

‘The Sift’

Once the Tribunal has received both the ET1 and ET3 forms, a judge will review these and will make an initial assessment as to whether the ET1 form discloses a claim which is capable of being dealt with by the Employment Tribunal (for example they will not deal with a defamation action). They will also check the ET3 to see if it discloses an arguable response.

The sift will be a low threshold to overcome and a Judge will only object to claims or responses that do not provide enough detail or are not something that can be dealt with by an Employment Tribunal.

Contested claims – preparing for the final hearing

Where a case is defended, the tribunal will set a date for the final hearing and will probably set a timetable of “directions” stating how the parties must prepare.

In most cases, the parties will be ordered to do the following by certain dates:

  • Disclose all documents held in their possession to their opponent, whether the documents assist or hinder their own case; and
  • The Claimant will be ordered to provide a Schedule of Loss or Statement of Remedy. This is a document which details what they are claiming and providing any documents in support of this. For example, if a Claimant is claiming two weeks loss of earnings it would be appropriate for them to provide copy payslips to support the amounts.
  • Prepare and exchange witness statements for each witness who will give evidence at the hearing.

Preliminary Hearings

With more complex cases, the tribunal may also order that a Preliminary Hearing should take place before the final hearing. There are two types of Preliminary Hearings which can be ordered by a Judge. The hearings will both be termed as Preliminary Hearings by a Tribunal, however, employment law practitioners will use the below terms to describe the hearings in greater detail:

Case management discussions (CMD’s)

CMDs are usually held privately before an employment judge with both both parties attending on a telephone conference. CMDs are led by the employment judge and are often used to clarify any unclear issues in the case, to discuss the timing of directions orders or to agree the details of the final hearing.

Case Management Discussions are routinely ordered in discrimination cases and are often ordered where one or both of the parties are unrepresented.

The final hearing

The final hearing will normally be conducted by a full tribunal consisting of a legally qualified employment judge (formally known as a ‘chair’) and two lay members, one of whom will have experience of industrial relations from an employer’s standpoint and the other from a trade union or employee standpoint. Decisions are made by a majority.

The parties and any witnesses giving evidence in support of their case must give their evidence on oath or affirmation. Where the parties have prepared written witness the judge will usually read these statements in private and will not require the witness to actually read the statement out in Tribunal.

The other side will then have the opportunity to ask questions about the evidence (this is called ‘cross examination’). The witness will then have an opportunity to give further evidence to clarify any further points which may have come up during cross examination (this is called ‘re-examination’). If the tribunal has any questions for the witness, they will ask them after re-examination.

Once all witnesses for both parties have given their evidence, each party will have an opportunity to summarise their case before the tribunal retires to reach a decision. If there is time, the tribunal will announce its judgment at the end of the hearing. Alternatively, it may inform the parties that the judgment will be given at a later date in writing (this is called ‘reserved judgment’).

If the Claimant wins and there is enough time at the final hearing, the tribunal will deal with the issue of compensation. If there is not enough time, or if judgment is reserved, a further hearing called a remedies hearing will be arranged to deal with compensation. So that the tribunal can determine how much compensation, if any, should be awarded to the Claimant, the Claimant will be expected to produce evidence of what they think they are entitled to recover.

Costs and expenses in the employment tribunal

In the tribunal, the general rule is that each party bears its own costs. In certain circumstances however, the tribunal can make an order that one party pays all or part of the other party’s legal costs.

Examples of when costs orders may be made are if a Claimant acted unreasonably, obstructively or vexatiously, or if the tribunal thinks that the claim was so poor that it never should have been brought.

The parties, their witnesses and any unpaid representatives may be entitled to claim certain expenses, for example travelling expenses, incurred in attending the tribunal hearing. If you feel that you are owed costs or could claim costs in a Tribunal it is worth seeking legal advice as these awards are not often made.

For business law advice call 0845 225 2635


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