What to do Next
Legal Expenses Insurance
If you are thinking of taking an Employment Tribunal claim, check all your insurance policies for legal expenses cover. If you have this cover, check to see whether it covers employment claims. If it does, contact your insurer to see whether you can make an insurance claim to cover the cost of legal advice and representation.
Legal help (a form of legal aid) is still available for discrimination claims. Information can be found on the gov.uk website, including an eligibility calculator which you can use to see whether you would be eligible for free help.
Before taking an Employment Tribunal claim
Most of the information below consists of links to specific pages on the following websites:
Before you take a claim to the Employment Tribunal, there are several things to consider.
Employment Tribunals apply very strict time limits and if you do not comply with them your claim will be rejected unless there are very exceptional circumstances. If you think exceptional circumstances may apply, you should take legal advice as soon as possible.
Action must be taken in respect of most claims within three months less a day of the end of your employment, or of the date of the incident you are claiming about.
Exceptions are redundancy pay (but not claims for unfair dismissal relating to redundancy) and equal pay (six months less a day for each).
To be certain that you are calculating time limits correctly, take legal advice as shown above.
Raising a grievance
If you are still employed, you should raise the issue with your employer before taking further action. You could do this informally first, but if that is not successful you could raise a formal grievance. There is information about raising a grievance, drafting letters, and what to expect when raising a grievance on the Advicenow and Citizens Advice websites, Make sure to keep a written record of all conversations you have with your employer, and don’t forget to sign and date all letters, keeping a copy for your own records.
ACAS early conciliation
If your employment has ended, or you have raised a formal grievance and still want to take things further, the next step is ACAS early conciliation.
Before taking a claim to the Employment Tribunal you must contact ACAS regarding early conciliation. There are a few exceptions to the requirement to contact ACAS, and details of these can be found together with other information and a link to the individual application form for Early Conciliation on the ACAS website.
Once you have made your request for early conciliation, you will be sent an email asking you to contact ACAS, which you should do as soon as possible. If you agree to participate in early conciliation, a conciliator will be appointed and they will contact you about your case. They will then contact your employer and try to negotiate a settlement. If an agreement is reached, it will be recorded on a COT3 form, and it will be legally binding and enforceable. If your employer does not pay, in the first instance you could speak to the ACAS conciliator, but if payment is still not forthcoming you may need to enforce the agreement. Information about enforcement, and the forms to complete, can be found on gov.uk.
ACAS have 1 month from the date that you contact them to try and reach an agreement between both sides. This can be extended by 2 weeks in some circumstances. If it is not possible to reach an agreement, ACAS will issue an Early Conciliation Certificate, which you will need in order to submit a claim to the Employment Tribunal.
Making a claim
An Employment Tribunal claim must be made on the prescribed form or it will be rejected. You can make a claim online by going to https://www.gov.uk/employment-tribunals/make-a-claim. You can save the form and return to complete it later. Alternatively, the claim form can be downloaded to complete offline and send by post.
When you complete the form you must complete all questions marked with an asterisk. If you do not, the claim will be rejected. You should give as much information as possible when you complete the form. If you are unsure about any of the questions, take legal advice from one of the agencies listed above. It is important to get the claim form right, so allow plenty of time for completing it.
Points to note:
- The claim must be received by the Tribunal within the time limit, not posted or emailed by that date.
- If a claim is rejected, or not successfully received, you will have to correct it and send it again, so that it still arrives within the time limit or it will be out of time.
- If you submit your claim online, it must arrive with the Tribunal before midnight on the day of the deadline. If it arrives even one minute late it will be out of time.
Fees and costs
There is no fee for making a claim in the Employment Tribunal. However, costs can be awarded against a Claimant or Respondent in certain circumstances - if, for instance, a Tribunal decides that a claim or response has no reasonable prospect of success. If you are warned by a Tribunal or Respondent that you may have costs awarded against you, you should take legal advice immediately.
After submitting a claim to the Employment Tribunal
Information about what happens after your claim is submitted can be found at https://www.gov.uk/employment-tribunals/after-you-make-a-claim.
More detailed information and advice can be found on the Citizens Advice website: https://www.citizensadvice.org.uk/work/problems-at-work/employment-tribunals/. These pages include guidance on preparing a schedule of loss, a list of documents and witness statements; they give information about orders a Tribunal can make and preliminary hearings, and provide useful flowcharts and a jargon buster.
In brief, the procedure after a claim is submitted is as follows:
- Once you have submitted a claim, it is sent to the Employment Tribunal for the area in which your employer is located. The Tribunal checks the claim, and if it is accepted they send a copy to your employer and anyone else you have named in the claim (the Respondent), and write to you, giving details of any further deadlines that you must meet, and sometimes giving you a date for the hearing of your case. If there are any problems with the claim or it is rejected, it will be returned to you. If you are within the deadline for submitting the claim, you will be able to amend it and resubmit. However, if the deadline has expired you will only be able to amend or resubmit the claim with the Tribunal’s permission.
- At the same time as sending a copy of your claim to your employer, the Tribunal will send a copy to ACAS. Conciliation will again be available to the parties, and you will usually be allocated the same conciliator who dealt with early conciliation in your case. As with early conciliation, if agreement is reached it will be recorded on a COT3 agreement which is legally binding and enforceable. If your employer does not pay, in the first instance you could speak to the ACAS conciliator, but if payment is still not forthcoming you may need to enforce the agreement. Information about enforcement, and the forms to complete, can be found on the gov.uk website.
- The Respondent usually has 28 days in which to send the Tribunal their response to the claim. Once the Tribunal has the Response and has accepted it, they will forward a copy to you. If they have not already done so, they will then issue orders giving a timetable for such things as the completion of a schedule of loss, disclosure of documents and exchange of witness statements.
- Sometimes, in more complex cases, a preliminary hearing will take place to decide what the timetable should be, or to decide other matters, such as whether an expert’s report is required. Very often such hearings are conducted by conference call to the Tribunal.
- If the Respondent does not submit a Response, the Tribunal can exclude them from taking a further part in the proceedings, and may decide to make a default judgment based on the information given in your claim form. They may ask you to attend a hearing, but it is unlikely the Respondent will attend, and if they do, it is unlikely they will be allowed to participate.
Schedule of loss
After your claim is submitted, you will be asked to provide a schedule of loss. This sets out the amount of money you are asking the Tribunal to award you, and so it is important to get it right. The Tribunal sometimes sends a template to complete. You can find a template and more information about completing a schedule of loss on these pages on the Citizens Advice website:
It can be very difficult to value a claim, particularly in claims for discrimination, and if you are not sure how to put a value on your claim, take legal advice as set out above. Some guidance can be found by looking at the most recent Employment Tribunal judgments.
The Presidents of the Employment Tribunal in England, Wales and Scotland have issued guidance on injuries to feelings awards in discrimination claims. The guidance can be read in conjunction with the information on the Citizens Advice website regarding such awards.
Once you have provided the schedule of loss, it may become easier to settle your claim. The amounts in the schedule of loss usually represent the maximum a Tribunal could award, and when you consider a figure for settlement you should bear this in mind. It is expected that when settling you will accept a figure which is lower than the total on the schedule of loss. This accounts for the advantage to you in settling early and the risks in the case. The difference between the total on the schedule of loss and a reasonable settlement sum will differ from case to case. If you are offered a sum to settle your case, or you wish to work out what figure you should put forward for settlement, you could take legal advice.
Sometimes a Judge will decide that a preliminary hearing is necessary to make certain decisions before a case goes to a final hearing. These hearings are usually with a Judge sitting alone, and they are often conducted by conference call. Examples of issues which could be considered at a preliminary hearing are:
- Scheduling the provision of information – eg schedule of loss, documents and witness statements
- In a disability discrimination claim, whether the Claimant is disabled
- What documents should be disclosed
- Interim awards and deposits
When the hearing is to decide case management issues and timetabling, the Tribunal often sends agenda proforma to complete and send to the Tribunal and the Respondent before the hearing. You will probably find that you cannot complete the form in full, but if you answer as many questions as possible, in detail, you will be well-prepared for the hearing, and should be able to respond to any additional issues which arise.
Sometimes, particularly in discrimination claims, Judicial Mediation can be offered to the parties. This involves attending the Tribunal, where a Judge will mediate between the parties to help them reach agreement. Judicial Mediation is much more informal than a hearing, and has a high success rate. If a Judge thinks a case may be suitable for Judicial Mediation they will often raise this at Preliminary Hearing. More information about Judicial Mediation is available on the gov.uk and Citizens Advice websites.
The protocol for Judicial Assessment states that a Judge can give 'an impartial and confidential assessment... at an early stage in the proceedings, of the strengths,
weaknesses and risks of the parties’ respective claims'. It is intended to assist both parties in recognising how likely it is that a claim will succeed, and therefore to help in negotiations about settlement. An assessment is usually given at the first preliminary hearing, and if you would like such an assessment you should tell the Tribunal before the hearing takes place. Certain conditions must be met before a Judicial Assessment can be made. The protocol which describes the procedure can be found here.
Bundle of documents
The Tribunal will order you and the Respondent to disclose documents to each other by a certain date, so that a bundle of documents can be compiled for use at the hearing.
When disclosing documents, you are expected to provide a detailed list, giving the name and date of the document, and/or to provide copies of the documents concerned. If the Respondent is compiling the index you should provide them with a copy of each of your documents. The Respondent will send you a list of their documents. If you haven’t got a copy of any document on their list, you should ask for a copy to be sent to you. If there are any documents you believe the Respondent has, and which you think should be included in the bundle of documents, then ask them to disclose them. If they refuse, you can ask the Tribunal to order disclosure.
The Tribunal will ask one party to compile a bundle of documents. This is usually the Respondent, particularly in cases where the Claimant is not legally represented. The bundle of documents will contain all the documents disclosed by both sides; it will consist of numbered pages, compiled with an index to show where each document can be found.
It is important that both sides disclose all the documents relating to the case. As a Claimant, you must disclose any documents that support your case, and any that support the Respondent's case. In addition, you must disclose documents which don’t help either party, but could give the Tribunal a deeper understanding of the situation. If you are in doubt as to whether a document should be disclosed, it is better to include it in the list. This is important because at a hearing the Tribunal can refuse to consider documents which have not been disclosed and included in the bundle.
Information about the bundle of documents can be found on the Citizens Advice website.
Information about preparing a witness statement can be found on the Citizens Advice website. The witness statement should be typed, in numbered paragraphs, and with pages numbered. It will form your principle evidence to the Tribunal, and will be given under oath. You will be asked questions on it at the hearing by the Respondent or their representative. Therefore you should make sure that it is an accurate and complete account of the events that took place.
The Employment Tribunal will order you to exchange witness statements with the Respondent; this is usually done simultaneously by email.Reconsiderations and Appeals
If you believe that there are grounds to show that a decision made by the Employment Tribunal is incorrect, you can ask for it to be reconsidered, or you can appeal.
At the hearing
You should arrive at the Employment Tribunal hearing centre in good time, and certainly no later than half an hour before the hearing is due to start. When you arrive you will be asked to go to the Claimant’s waiting room. Tribunal hearings are usually open, and so if you wish to take friends or relatives to support you they will be able to come into the hearing with you. When you attend the Tribunal, you should take the following:
- Signed copies of your witness statement. The Tribunal will have told you how many copies to provide. A clerk will come to the Claimant’s Waiting Room and ask for your documents at the Tribunal. You should give them copies of the witness statement, and keep a copy for yourself. At the hearing, you will be asked questions on the statement by both Respondents or their representatives and the Judge. You should bear in mind that the statement will form the main part of your evidence, and that you will be reading it, and answering questions on it, on oath, or after swearing an affirmation. You should make sure that all the answers you give are truthful.
- Your copy of the bundle of documents, plus further copies as directed by the Tribunal if you have prepared the bundle. You should read through the bundle before the hearing, so that you are familiar with the documents it contains and the layout. You might want to take particular note of the documents referred to in your own, and the Respondents' witness statements.
- If required, copies of a list of issues and submissions for the Tribunal.
A copy of the Respondent’s witness statements. You will have the opportunity to question each witness in turn. The Tribunal will also question the witnesses, and if you indicate that you do not wish to question witnesses, they will ask all the questions they believe to be relevant.
Further information about the hearing can be found on the Citizens Advice website, or on the out-law website which is hosted by Pinsent Masons.
Judgments and enforcement
After the hearing, the Judge will usually give an oral Judgment, and this will be followed by a written Judgment a few days later. The Judgment will also become available on the gov.uk website. Sometimes Judgment is reserved, in which case it will be sent to you at a later date, once it has been decided. Full reasons are usually only given in an oral Judgment; if you would like these in writing you can request them. A request must be made within 14 days of the date on which the Tribunal sends the written Judgment.
If the Judgment includes an order for payment, it will specify how much is to be paid, and by when. Usually an employer will be given 42 days (6 weeks) in which to pay. If they do not pay within that time, interest begins to be added to the amount owed. Once the 6 weeks is up, you can take action to recover the money owed to you. Information about enforcement, and the forms to complete, can be found on gov.uk.
If an employer does not pay, you can ask to have them fined. Information about this can be found in another section of the gov.uk website.
A Tribunal can reconsider a decision made by a Judge, if it is in the interests of justice to do so. The Tribunal can decide to do this itself, or an application for reconsideration can be made by one of the parties to the claim. An application must be made within 14 days of the date on which the decision is sent to the parties.
Reconsiderations can be made if, for instance, there has been an administrative error, or if there is additional evidence which was not available at the date of a hearing.
If you think a Tribunal has made an error of law, you can appeal to the Employment Appeal Tribunal. The Employment Appeal Tribunal will not consider issues of fact: these can be dealt with by applying for a reconsideration.
The first step in making an appeal is to request written reasons for the decision you wish to appeal (usually a Judgment). You have 14 days from the date on which the Employment Tribunal sends the decision to the parties in which to request written reasons. This date will be on the Judgment or letter from the Employment Tribunal communicating a decision.
The time limit for making an appeal to the Employment Appeal Tribunal is 42 days from the date on which a decision is sent to the parties. If a reconsideration is requested, the time limit for an appeal is not extended while the Tribunal considers that request.
The procedure for appealing is complex, and you should always take legal advice before starting an appeal.