Employment Tribunal Support
If the thought of an employment tribunal claim landing on your desk throws you into despair or if you are currently losing sleep over an employee relations issue which may well lead to one, help is at hand.
At Jaluch, we have a wealth of experience and for around half the price of your average solicitor we can provide expert support in handling Employment Tribunal claims, everything from drafting the responses (ET3) to preparing the bundle of documents used at tribunal. Our aim is to make the process as pain free and as smooth as possible for you.
How we can help
- Advising on the nature of claims.
- Supporting through the Early Conciliation process with ACAS.
- Drafting the responses (ET3’s) and dealing with subsequent paperwork.
- Helping you to plan your strategy for defending the claim.
- Giving our expert opinion as to the likelihood of success and possible costs.
- Liaising with ACAS, the Tribunal, or the Claimant on your behalf.
Why choose us?
- Around half the price of your average solicitor.
- Potential claim brewing? We will do everything we can to help you avoid a tribunal.
- Reduce the burden on you and your business, we can do the heavy lifting.
- Experienced consultants who can advise you on every step of the procedure to ensure that you remain legally compliant.
- We can keep the lines of communication open with the claimant and where possible, settle the claim outside of a tribunal.
So if you are faced with a tribunal claim or if you think that the process you are following may well lead to a claim (some employees make no secret of it) then get in touch and let us take some of the strain for you.
Employment Tribunal FAQs
Employment tribunals are legal hearings to resolve employment disputes between workers and employers. Claims are normally related to:
- Unfair dismissal
- Redundancy payments
- Discrimination (age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation)
- Contract breaches
If the case proceeds to court (a large amount are settled out of court) the tribunal judge and panel members (if a panel hears the case) will consider the evidence presented by the claimant, respondent and any witnesses, will hear closing arguments (submissions) from both parties and make its decision.
Before being able to issue a tribunal claim, it is a pre-requisite that the claim is registered with under their mandatory early conciliation scheme within the set time periods.
This will ‘stop the clock’ on the usual tribunal time limit until the day the employer receives a certificate from ACAS confirming that conciliation has been completed. The clock starts running again once the early conciliation certificate has been received, but the time the employee then has to issue a claim will be limited.
This is the opportunity to settle before the case goes any further even if settlement is made for commercial reasons.
Appearing at an employment tribunal can be daunting.
Firstly, legal fees - it costs an employer an estimated £8,500 to defend an employment tribunal claim, but it can be as much as £23,000.
There is also management time to consider; for a manager on £40,000 per annum, the cost to the business of them spending two weeks on preparation ahead of a tribunal hearing could be around £2,000.
If the claim against the employer is successful, then losing at tribunal can be a costly exercise. The maximum and average awards for unfair dismissal and discrimination for April 2019 to March 2020 were:
- Unfair dismissal - £118,842 (max), £10,812 (av)
- Race discrimination - £30,330 (max), £9,801 (av)
- Disability discrimination - £265,719 (max), £27,043 (av)
- Sex discrimination -£73,619 (max), £17,420 (av)
In addition to awards won by claimants, tribunals can enforce financial penalties on employers if employees’ rights have been breached. This can be anywhere from £100 to £5000.
The claimant will need to complete an ET1 claim form which is a formal legal document.
After the ET1 has been submitted and accepted by the tribunal, they will copy and send it to the employer. The employer will then have the option to respond or defend the claim.
The respondent (employer) has 28 days (from the date the ET1 was sent, not the date it was received) to submit a response. The date will be clearly stated on the claim form.
To defend a claim, the respondent (employer) must submit an ET3 form to an employment tribunal. If employers fail to respond to any claims made, the tribunal might automatically decide the case in the claimant's favour. This is called a default judgment.
If you haven't done this before and this process sounds daunting, we can work with you to draft ET3 responses and deal with subsequent paperwork.
To bring a claim for unfair dismissal an employee must have completed two years’ service, however, discrimination claims do not require any minimum qualifying length of service. In addition, if an individual has been dismissed for a reason such as raising concerns about a health and safety issue or for asserting a legal (or “statutory” right), such as the right to have rest breaks or the right to a minimum wage, they can still claim ‘automatic’ unfair dismissal without 2 years’ service.
Depending on what the individual is claiming, a tribunal can award:
- a fixed sum if they're claiming unfair dismissal - this is known as a basic award.
- compensation for the financial loss they've suffered if they’ve been unfairly dismissed - called a compensatory award.
- Notice pay (if breach of contract)
The maximum amount that you can be awarded as compensation for constructive dismissal is presently the statutory cap of £89,493 or 52 weeks gross salary- whichever is the lower. This is in addition to the basic award which can be ordered by the Tribunal of up to a maximum of £16,320.
In addition, if the Claimant is bringing a discrimination claim (or a claim that they have been subjected to a detriment for whistleblowing) they can claim for Injury to Feelings award (Vento bands).
If a discrimination claim is successful, an Employment Tribunal has the ability to award damages to employees for injury to feelings, for example if an employee has been humiliated by their employer, received degrading treatment or suffered distress. Damages awarded for injury to feelings are separate to compensation for financial losses.
The bands of awards for injury to feelings are called Vento bands. Vento bands are named after a landmark case from 2003 (Vento v Chief Constable of West Yorkshire Police) where the Court of Appeal set out clear guidelines for courts and Tribunals to apply when they are assessing injury to feelings awards.
In respect of claims presented on or after 6 April 2021:
- A lower band of £900 to £9,100 (less serious cases);
- A middle band of £9,100 to £27,400 (cases that do not merit an award in the upper band);
- An upper band of £27,400 to £45,600 (the most serious cases), with the most exceptional cases capable of exceeding £45,600.
Once the response has been submitted (within 28 days) the Tribunal will decided whether there will be a full hearing to decide the case. This may have already been decided and the date and timescales already determined, however sometimes both parties may be invited to a ‘Preliminary hearing’. This is an initial hearing (which may be in person, or by phone or video) with a Judge, the purpose of which will be to decide on issues such as:
- whether part or all of the claim can go ahead
- the date and time of a hearing
- how long the hearing should take
In addition, the Tribunal will issue a timetable for the disclosure process. This is an exchange of documents between the parties pertinent to the case (anything that is written down about what’s happened*, e-mails, letters, texts) and the timetable for response must be strictly adhered to.
At this stage, the Tribunal will decide who will be responsible for collating the final bundle of documents which will be referred to in the final hearing. It is generally the respondent (employer) who undertakes this responsibility. This process is also likely to include the production of witness statements which need to be included in the bundle and will form the basis of questioning.
*It is becoming increasingly common for personal documents to be requested prior to any exchange of documents in the Employment Tribunal process via a Data Subject Access request (DSAR). This is a request from someone you store data on (called a data subject) e.g. an employee or ex employee to your organisation. They can submit this request at any time. You are obligated to respond with a copy of any relevant information you have on the subject.
The Claimant will present their case to the Tribunal. They will either do this in person or they can choose for someone else to do this for them, either a lawyer, friend or family member. The Claimant will usually present their case first (unless it is an unfair dismissal case) and be asked questions by the Judge (and sometimes other tribunal panel members if present) and you as the Respondent (or your representative). The Respondent will then present their case with the same principles of questioning.
Either party can appeal against an Employment Appeal ruling. The appeal is made to the Employment Appeal Tribunal (EAT). Appeals can be made if either party believes a legal mistake was made in the original employment tribunal case (not just because you don’t agree with the decision made by the Judge). Examples of the reasons you might appeal are because you feel the Tribunal:
- got the law wrong
- did not apply the correct law
- did not follow the correct procedures and this affected the decision
- had no evidence to support its decision
- was unfairly biased towards the other party
The EAT is independent and will listen to both sides of the argument before making a decision.
The sums involved can be eyewatering for employers. Jaluch can help businesses minimise the number of tribunal claims being brought against them by ensuring full compliance with UK employment law, everything from legally-sound employment documentation to training for managers and/or senior leaders. Contact us to find out more.