How the Employment Tribunal works – guide for small business owners

Are you an employer that is being taken to the Employment Tribunal by an employee for alleged sexual harassment or racial discrimination or for unfair dismissal?

Are you an employee that feels your job situation is untenable? If so, then here’s what to do.

There are many reasons why someone might take their employer to a tribunal. Poor pay, unfair dismissal, discrimination and sexual harassment are among the most common.

There is also something known as constructive dismissal which is where an employee resigns due to the behaviour of the employer or where they believe their situation is untenable.

However, employees cannot claim unfair or constructive dismissal unless they have been working as an employee for an employer for two years.

Avoiding the Employment Tribunal

There are several ways to try and avoid such situations occurring in the workplace.

Firstly, as an employer you should have a solid contract of employment for each employee. This should clearly state the specific job specification, hours and days of work and length of contract whether permanent or temporary.

Secondly, have a workable grievance policy in place and clear procedures on how to handle employee grievances. This will give an employee (and employer) confidence that if there is a complaint, there is a process that they can follow.

To ensure that this process works satisfactorily, you should give training to all your staff, especially senior employees, on how staff can raise grievances and to whom employees may go to initially for advice.

Other policies such as an Equality and Diversity Policy may also be a good idea also to show what the company’s stance is on such matters. Having policies in place and giving training to all employees about them gives confidence to all.

Managing conflicts in the workplace

Of course, if you are an employer who runs a company that is relatively large, you cannot avoid conflicts occurring. There are bound to be clashes of personality and in such cases, being conciliatory is the best option. There is nothing worse for an employee than thinking they are being ignored or that it’s a pointless process to complain.

Sitting at a table to discuss the complaint face-to-face should be the first step. Unless, of course, the employee’s complaint is against the boss him/herself, which may obviously prove very difficult.

As an employer, the last thing you want to happen is for a tribunal case to ensue. Nevertheless, in some cases, this may be unavoidable. You may find that you are dealing with an individual who feels that they have been unfairly dealt with and cannot get over that hurdle.

In effect, an employee may feel that their job situation is untenable and that the complaint has not been handled at all well, let alone resolved. This may leave him/her feeling that there is no alternative but to take their employer to a Tribunal.

What is an Employment Tribunal?

Tribunals are independent judicial bodies that are less formal than courts and were initially created to be more accessible and less daunting for individuals to resolve issues and disputes.

Employment tribunals are just one of eight main Tribunals in England and Wales. The others are:

• Immigration Services Tribunal,
• Lands Tribunal,
• Social Security & Child Support Commissioners,
• The Criminal Injuries and Compensation Appeals Panel,
• The Mental Health Review Tribunal,
• Pensions Appeal Tribunals, and
• Asylum & Immigration Tribunal.

Taking an employer to a tribunal doesn’t need to involve the services or the costs of a solicitor and there is plenty of information and guidance online, and virtually all the work can be done electronically.

What is the Employment Tribunal process?

An employee will start by filling in an ET1 form which, along with all Employment Tribunal forms, can be downloaded from this page of Gov.UK. This is a very important form in which a statement is made about your claim. If the case does go to a hearing, this is the first document the tribunal will read so it is essential all the facts are clear and focused on your claim.

The ET1 form is then sent to the employer who then has a set time (four weeks) to respond on another form known as an ET3.

As employment law is so complex and the ET1/ET3 forms are crucial to any claim/defence, it is a good idea to have some help in preparing a case.

This is where the help of a paralegal, who can offer the same advice as a solicitor but generally charges considerably less, might be worth considering. A paralegal will have completed legal training and have experience but is not qualified as a solicitor.

Since July 2017, there is no fee to pay to make your claim at a tribunal, although there is a small chance an employee could be asked to pay the employer’s cost of going to the tribunal if the case goes against the employee. However, if the process is followed correctly it is unlikely that costs will have to be paid, so preparation should be a priority.

Completing Employment Tribunal forms

When completing either the ET1 or ET3 form, a clear but concise account of what the claim is about should be stated and keeping to the point is a must. All the key events should be included but going into an enormous amount of detail should be avoided, and number each paragraph for easy reference.

When complete, it should be made clear whether the ET1 is being submitted to the Central Office of Employment Tribunals by the employee or the employee’s advisor.

In most cases a claim has to be submitted three months, less a day, from the date of dismissal and claims that arrive late won’t be considered.

If at all possible it is really best to try and solve the problem through conciliation, before it gets to this point, and your first port of call should be the Advisory, Conciliation and Arbitration Service (ACAS). Alternatively, mediation is another method of resolving the issues.

An employer at this juncture, needs to decide whether to proceed or to try and settle. If not the latter or settlement is unsatisfactory, then facing the possibility of a tribunal, both parties need to decide whether to represent themselves or engage a representative.

Employing the services of a paralegal means that they will do all the preparation for you and will act as your representative at the tribunal.

What happens on the day of an Employment Tribunal?

Even though Tribunals are more relaxed than courts, they are still part of the courts service. Therefore, ensuring that you arrive in plenty of time, dressing smartly, avoiding trainers and jeans, switching off your mobile phone and avoid chewing gum, are all essential.

Always tell the truth, because if the Tribunal finds that a party has given false information it could have an adverse effect on the claim or the defence.

On arrival, check in with the clerk who will ask both parties if they have a representative and for any documents, witness statements and a certificate from ACAS to provide proof that both parties have spoken to them.

If there are no representatives present, any notes and evidence need to be brought to the Tribunal by the parties themselves. This can be in the form of emails, letters or text messages between employee and employer along with any copies of witness statements supporting the claim/defence.

The parties will be asked to wait in a room until called and it is at this point that there may be an approach by the employer to the employee to negotiate a last-minute settlement.

An employee should not be intimidated or pressurised by this and should only settle if the offer is good enough.

Once inside the Tribunal there will be a chairperson who will be legally qualified with experience in this area of law, together with two non-legally qualified individuals, who may be, for example, an experienced employer or human resource expert. The other could be a trade union representative to give a perspective for the employee.

As this is a public hearing, there will be other people there including friends and family to support either party.

Although the process of a tribunal case is very straight-forward and quite similar to a hearing in court, the testimony is not given on oath. That means that neither party is asked to make an affirmation tell the truth under a penalty of perjury (as you would do in court).

The employee bringing the action sits on the right facing the Tribunal panel and the employer on the left.

The case starts with the employee stating their case and giving evidence and then the employer is asked to respond.

Employment Tribunal decisions and appeals

Usually, tribunal decisions are given quite quickly – sometimes on the same day or within a few days or weeks of the hearing.

If the employee wins, then the tribunal will indicate what steps can be taken to make compensation and give a time stipulation for this to be made. If this is not adhered to, then enforcement proceedings can be taken.

If the employee does not win, then there is a possibility within 14 days to request that the tribunal re-considers its decision. If there is further dissatisfaction with the result, then a Notice of Appeal form, available on Gov.UK and send it to the Employment Appeal Tribunal (EAT) either by email or post.

The employer also has a right to appeal such a decision in the same way.

There is no fee to appeal, but it needs to be done within 42 days from the date of the decision or the date the reasons for refusal were sent and it needs to arrive by 4pm on the final day.

A decision will then be made on whether the appeal can go ahead and if so, the parties will be asked to attend a hearing.

If you are not eligible to appeal, a letter explaining why will be sent, including details of whether you can appeal further.

Although a tribunal is a reasonably straightforward process, unless the parties have experience of speaking in public and a good knowledge of the law in this subject, it can be a daunting task to do it all yourself.

Therefore, engaging a paralegal, who has training and legal knowledge, may help take the stress out of the situation and ensure the case doesn’t collapse because of a lack of the right documents or paperwork.

This guide has been written exclusively for ByteStart by Amanda Hamilton, Chief Executive of the National Association of Licenced Paralegals (NALP). Through its training arm, NALP Training, accredited recognised professional paralegal qualifications are offered for a career as a paralegal professional.