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The Life of an Employment Tribunal Claim

Often, where the employment relationship breaks down, a claim will be raised by an (ex) employee (“the Claimant”) against their former employer (“the Respondent”) asserting that certain rights of theirs have been breached. This will result in proceedings before the Employment Tribunal (“the ET”). A common question is: what is involved in pursuing or defending a claim before the ET?

Below is a basic outline of the stages that such a claim will go through to allow a claim to be disposed of.

1. ACAS Early Conciliation

ACAS (Advisory Conciliation and Arbitration Service) is an organisation which is independent and impartial and liaises with both parties to an employment dispute, trying to encourage settlement.

There is a duty on a Claimant to register for ACAS Early Conciliation before a tribunal claim can be raised. This is done by completing and submitting the Early Conciliation Notification Form. A Conciliation Officer will be assigned to the case and if the parties to the dispute are happy to participate in early conciliation then the Conciliation Officer’s role is to promote settlement between the parties.

Settlement has to be reached within one calendar month from the date on which the prospective claimant made initial contact with ACAS. Note, the period may be extended on one occasion, by up to a maximum of 14 days.

2. ACAS Early Conciliation Certificate Issued

If it is not possible for the parties to come to an agreement, or if a party does not wish to participate in early conciliation, then an Early Conciliation Certificate will be issued.

The certificate will have a unique reference number which a Claimant will need if they intend to subsequently lodge a claim with the ET.

3. ET1 – Claim Form

The normal time limit for making a claim to the ET is three months from the date when the act complained of happened (e.g. the date when the Claimant was dismissed). However, if parties have entered into the early conciliation process then this will extend the time limit.

The ET1 should be drafted by a Claimant or their representative so that it contains details of all of the relevant circumstances surrounding the case and details of what claim is being pursued.

This form is then submitted to the ET, who will process the claim in terms of the Employment Tribunal Rules.

4. ET3 – Response Form

Unless the claim is rejected by the ET, it will serve a copy of the ET1 Claim Form on the Respondent.

The Respondent then has 28 days to submit their response/defence to the ET using the ET3 form. The response will state whether the respondent wishes to resist the claim, in full or in part, and will provide details of the grounds on which it intends to rely.

The ET can then accept or reject the response.

If the tribunal accepts the response, a copy will be sent to the Claimant.

Following this, there will then be a period of time where parties adhere to ET procedure and prepare the case for determination at a final hearing.

5. Preliminary Hearings

A preliminary hearing may be set by the ET on its own initiative or as the result of an application by a party.

Preliminary hearings can be held for a number of reasons including determining preliminary issues (e.g. in an unfair dismissal claim, whether the Claimant has the required length of service to bring the claim) or the making case management orders.

A Preliminary Hearing will only usually be fixed where it will assist the ET and/ or the parties prepare for the final hearing, or where there is a legal or jurisdictional point that, once decided, will determine the claim of itself.

6. Case Management Orders

The ET has the power to make case management orders at any stage in the proceedings, either on its own initiative, or following an application from a party.

Case management orders are orders or decision of any kind in relation to the conduct of proceedings, not including the determination of any issue which would be the subject of a judgment. Examples include amending the claim or response; ordering a party to produce documents or additional information; or ordering a witness to attend a hearing.

7. Ongoing ACAS Involvement

Even if Early Conciliation is not successful, ACAS can continue to assist parties in facilitating a settlement, even after the proceedings have been issued and will seek to promote settlement if possible. If this happens, the claim would resolve and no further procedure would be necessary. Settlement of a claim can occur at any time right up to, and sometimes even during, a hearing.

8. The Hearing

The ET is less formal than Sheriff Court proceedings, however it is a quasi-court and it follows many of the same rules of process as formal court proceedings when disposing of claims at a hearing.

The main purpose of the hearing is to deal with the case fairly and to minimise the expense while keeping parties on an equal footing.

Claims may be heard by an Employment Judge sitting alone (who will usually be a legally trained lawyer) or by a full tribunal which is made up of an Employment Judge and two lay members, one of whom has a background in employee relations from an employee’s side; the other who will have experience of dealing with industrial relations from an employer’s perspective.

It will usually take approximately 6 months from the date that the ET1 claim form is lodged with the ET before any hearing will take place, although in some complex cases and where there has been a Preliminary Hearing, it can take slightly longer for the claim to reach a hearing.

The length of a hearing will depend on the nature of the claim before the ET; the evidence that needs to be heard and the number of witnesses being called to give evidence. They can last for any period ranging from a few hours to many weeks.

The Claimant and the Respondent (or its employees) will give evidence to support what is set out in the written pleadings. However, it is also possible to call other witnesses who can support or give evidence in relation to the claim.

Additionally, parties will usually have agreed on what documents should be before the ET and which will be referred to by witnesses when giving their evidence.

Before giving evidence, witnesses are asked to take the oath or affirm. All witnesses during the case are examined (asked questions by their own representative), cross examined (asked questions by the other party’s representative) and re-examined (final questioning by their own representative to clarify matters raised in cross examination). The Employment Judge and other tribunal members also have the opportunity to ask the witness any questions to clarify evidence that has been brought out during questioning.

Once all evidence has been led and all witnesses have been questioned, the representatives for the Claimant and Respondent then make their submissions for the Employment Judge/ tribunal members to consider.

9. The Decision

Depending on how long the hearing lasts, it is likely that the ET will “reserve” its decision. This means that it is possible that the parties may need to wait for several weeks or months before a written judgment is issued. In some cases, the judge may provide a verbal judgement at the conclusion of the hearing and the written judgment will be issued at a later date.

Once the ET’s decision is issued to both parties, parties have 14 days to apply to the ET to reconsider its decision and 42 days to appeal. It must be noted that appeals are only allowed with regards to points of law – they cannot be made just because a party disagrees with the ET’s decision.

If a Claimant is successful, then there may have to be a further hearing fixed in order to determine how much compensation should be awarded.

Contact our Employment Tribunal Solicitors Glasgow

Miller Samuel Hill Brown’s solicitors regularly appear in the Employment Tribunal on behalf of its clients. If you require assistance in pursuing or defending a tribunal claim, get in touch and we will be happy to help.

Get Legal Advice, call: 01412211919

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