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A Typical Employment Tribunal Case
Every Tribunal case is different. At various stages in the proceedings the file is referred to an Employment Judge who will take a view as to the procedure that is to be followed. The stages set out below are fairly typical and intended to be no more than a guide to what might happen. A more complicated case could have a number of additional stages.
Claim Form
Every Employment Tribunal claim is subject to a time limit. A Claimant can lodge his claim (ET1) at the Employment Tribunal electronically, by fax or through the post. Generally within a couple of days of receipt of the Claim Form the Employment Tribunal will send through the post to the Respondent a copy of the Claim Form together with a Notice.
Response
The Notice accompanying the Claim Form will specify the date by which the Respondent must file at the Tribunal its Response (ET3) to the claim. This is effectively a written document containing the Respondent’s Defence. It must be received by the Tribunal within 28 days of the date when it sends the Claim Form to the Respondent. A failure to comply with this time limit could prevent the Respondent from taking any further part in the proceedings.
Review by an Employment Judge
When both parties have set out their position in writing (or if the Respondent has failed to do so once the time limit has elapsed) the paperwork will be reviewed by an Employment Judge. Very roughly, the outcome of this review will normally be one of the following:
Listing
Shortly after Standard Directions are issued or at the Pre-Hearing Review or Case Management Discussion, the case will be listed for hearing. In a simple case the Tribunal will stipulate a single day. If there are features which suggest that the hearing will take more than a day to conclude then a longer period will be allowed. Ideally the parties should advise the Tribunal beforehand if it is thought that the number of witnesses involved, the complexity of the case or some other reason means that the case will last more than one day. It is important that the parties notify the Tribunal at the earliest possible opportunity of the dates when they or their witnesses would be unavailable to attend a hearing. It is very much easier to have the Tribunal fix a date when one is available than to try and have a hearing date postponed after it is fixed. Sometimes the Tribunal will decline to postpone a hearing, on the basis that the parties should prioritise the case, in preference to other business or personal matters. Typically, the hearing of the case will take place between four and six months after a claim is issued.
Schedule of Loss
An Employment Judge will direct (in Standard Directions or at a Pre-Hearing Review or Case Management Discussion) that the Claimant should disclose by a specified date exactly how much he is claiming and to disclose the documents in support of the figures that he puts forward.
Disclosure
The Directions will also specify the date by which each party is supposed to advise the other of the documents upon which it will rely at the hearing. Commonly the Direction will stipulate that each party must send to the other copies of those documents by a specified date.
Bundles
The Tribunal will direct that all relevant documents in the matter should be put together into a formal bundle for use at the hearing. It is generally the responsibility of the Respondent to collate the bundle and to make six copies available for the use of the Tribunal Members, witnesses and parties at the hearing. The preparation of the bundle itself can be somewhat onerous in that the Tribunal will expect the documents to be placed in a logical order, paginated and identified in an index.
Witness Statements
By a specified date (typically two weeks before the hearing is due to start) the parties will be directed to exchange copies of the Statements which their witnesses will read out at the hearing. Usually this is accomplished by the representatives of both parties agreeing either to e-mail copies to each other at a specified time or to put them in the post on the same date. Statements set out the facts that a witness alleges. They should be drawn carefully and cross-referenced to documents in the bundle.
The Hearing
The Hearing will normally take place before a panel of three Tribunal Members, one of whom is an Employment Judge. Sometimes the Employment Judge sits alone. It will generally start with the Employment Judge specifying the issues in the case and indicating the procedure to be followed at the Hearing. Generally, a Claimant presents his case first although in an unfair dismissal case where the dismissal is admitted, it will be for the Respondent to go first. Witnesses read out their prepared Statements and are asked questions by the representative of the other party and perhaps by the Tribunal Members. When all the evidence has been heard, the representative for each party will be given the opportunity to make representations (i.e. to explain to the Tribunal why they think they should win the case). The party whose witnesses give evidence first delivers its representations last.
Judgment
Usually the Tribunal Members will withdraw to consider the outcome of the Hearing. They might return to the Tribunal Room to deliver the Judgment and Reasons or may indicate that the Judgment will be “reserved”. What this means is that a written Judgment will be sent to the parties, generally within four weeks. Sometimes the Judgment deals with who wins and if the Claimant is successful will specify another date when a hearing will take place to determine the awards that are to be made. Often further Directions will be given, dealing with documents or evidence, in readiness for what is called a “Remedies Hearing”.
Appeal
There is a right of appeal to the Employment Appeal Tribunal against the Judgment of an Employment Tribunal but it only arises in relatively few cases. It is not enough merely to disagree with the outcome. Generally it will be necessary for an appellant to show that the Tribunal might have made a mistake as to the law before he is permitted to pursue an appeal.
During the course of this procedure it is open to the parties to make applications to the Tribunal and indeed the Employment Judge can of his own motion issue Directions and require steps to be taken.
Although the Directions issued by the Tribunal will carry time limits, it is very unusual for a claim to be dismissed by reason of the Claimant’s failure to adhere to these time limits. Generally one has to make a number of applications and only in an extreme case will one of the parties effectively lose for failure to comply with time limits. Such applications are however commonly made in order to exert pressure on the other side.
Parties can also apply for Orders in the course of the proceedings. These might include the disclosure of additional documentation, to postpone or adjourn hearings, to amend the documentation which they have already filed or Witness Orders.
Costs
Awards of costs in the Employment Tribunal are relatively rare. Although in the County and High Court the general rule is that the loser will be ordered to pay the winner’s costs, there is no such general rule in the Employment Tribunal. Apart from some specific provisions, generally the only time that a costs order will be made is where one party successfully alleges that the other party has “in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by [that other] party has been misconceived”.
The term “misconceived” effectively means that the party has conducted the case without there being any reasonable chance of success.
It will be noted from this wording that, in deciding whether or not to award costs, the Tribunal is not concerned with what happened before the proceedings commenced. It is the conduct of the proceedings themselves that can give rise to an award of costs and not the actions of the parties before the claim was issued.
A party to a Tribunal claim should assume that, ultimately, he will have to pay his own legal costs.
Conciliation
Generally, when the claim is issued the Tribunal will send a copy of it to the Advisory, Conciliation and Arbitration Service (“ACAS”) who will in turn appoint a Conciliation Officer. It is the duty of that Officer to facilitate negotiations between the parties, with a view to their settlement.
Some Claimants bring proceedings assisted by the Citizens Advice Bureau and thus will incur no liability for costs. The CAB can sometimes arrange a barrister from the Free Representation Unit to represent the Claimant at the hearing. Other Claimants might be represented by solicitors under the terms of a Legal Expenses Insurance Policy, which is often part of a household or contents policy. Some solicitors will represent Claimants on a “no win, no fee” arrangement, taking in lieu of a fee a proportion of the financial award.
On the latest statistics (2008-9), 32% of all Tribunal cases are settled before they reach a hearing. There is always an element of risk in Employment Tribunal proceedings and it is very rare that a party can be absolutely certain that he will succeed. As a rule, at the conclusion of every Tribunal case, at least one party (occasionally both parties) will be disappointed at the outcome.
Inevitably, the longer a case goes on, the greater the legal costs incurred by the parties (generally with little prospect of recovering them from the other side). Although a Respondent might expect to win the case, it might nevertheless make commercial sense to agree to pay the Claimant a sum by way of settlement, so as to avoid the risk of losing and also the liability for additional legal costs that would arise if the matter was pursued all the way to a hearing.
A settlement negotiated through ACAS is confirmed in writing on Form COT3 whose wording will be agreed by the parties’ representatives. ACAS will typically ask the Respondent to prepare the first draft of the Agreement.
A Typical Employment Tribunal Case
Every Tribunal case is different. At various stages in the proceedings the file is referred to an Employment Judge who will take a view as to the procedure that is to be followed. The stages set out below are fairly typical and intended to be no more than a guide to what might happen. A more complicated case could have a number of additional stages.
Claim Form
Every Employment Tribunal claim is subject to a time limit. A Claimant can lodge his claim (ET1) at the Employment Tribunal electronically, by fax or through the post. Generally within a couple of days of receipt of the Claim Form the Employment Tribunal will send through the post to the Respondent a copy of the Claim Form together with a Notice.
Response
The Notice accompanying the Claim Form will specify the date by which the Respondent must file at the Tribunal its Response (ET3) to the claim. This is effectively a written document containing the Respondent’s Defence. It must be received by the Tribunal within 28 days of the date when it sends the Claim Form to the Respondent. A failure to comply with this time limit could prevent the Respondent from taking any further part in the proceedings.
Review by an Employment Judge
When both parties have set out their position in writing (or if the Respondent has failed to do so once the time limit has elapsed) the paperwork will be reviewed by an Employment Judge. Very roughly, the outcome of this review will normally be one of the following:
- A Default Judgment – If the Respondent has failed to deliver a Response in time or if the Response document does not disclose a Defence to some or all of the claim, the Employment Judge may direct that a Default Judgment be entered in respect of some or all of the claim. This means that only the matter of remedy will remain to be decided. A Default Judgment is generally accompanied by Directions.
- Standard Directions are issued – Most Employment Tribunals have a set of Standard Directions that they will issue in a typical case covering matters such as disclosure, the delivery of Witness Statements and preparation for the hearing (see below).
- A Pre-Hearing Review will be fixed – If there is some preliminary issue to be decided (such as whether the Claimant was genuinely an employee or a disability discrimination Claimant actually a disabled person) the Tribunal will sometimes fix a Preliminary Hearing (known as a Pre-Hearing Review) at which the matter can be dealt with. Sometimes if the Claimant fails to succeed in establishing the preliminary issue, the case will go no further. If there is to be a Pre Hearing Review then typically the Employment Judge will issue a number of Directions advising the parties of the steps which they must take in advance of that hearing.
- A Case Management Discussion is fixed – It may well be that the Employment Judge feels that a discussion with all parties would be helpful, perhaps in clarifying the issues that must be dealt with at the Final Hearing. In this situation, the parties would be invited to attend a Case Management Discussion hearing so that these matters can be considered. Occasionally, the Tribunal will direct that the Case Management Discussion is in fact dealt with over the telephone, by way of conference call.
Listing
Shortly after Standard Directions are issued or at the Pre-Hearing Review or Case Management Discussion, the case will be listed for hearing. In a simple case the Tribunal will stipulate a single day. If there are features which suggest that the hearing will take more than a day to conclude then a longer period will be allowed. Ideally the parties should advise the Tribunal beforehand if it is thought that the number of witnesses involved, the complexity of the case or some other reason means that the case will last more than one day. It is important that the parties notify the Tribunal at the earliest possible opportunity of the dates when they or their witnesses would be unavailable to attend a hearing. It is very much easier to have the Tribunal fix a date when one is available than to try and have a hearing date postponed after it is fixed. Sometimes the Tribunal will decline to postpone a hearing, on the basis that the parties should prioritise the case, in preference to other business or personal matters. Typically, the hearing of the case will take place between four and six months after a claim is issued.
Schedule of Loss
An Employment Judge will direct (in Standard Directions or at a Pre-Hearing Review or Case Management Discussion) that the Claimant should disclose by a specified date exactly how much he is claiming and to disclose the documents in support of the figures that he puts forward.
Disclosure
The Directions will also specify the date by which each party is supposed to advise the other of the documents upon which it will rely at the hearing. Commonly the Direction will stipulate that each party must send to the other copies of those documents by a specified date.
Bundles
The Tribunal will direct that all relevant documents in the matter should be put together into a formal bundle for use at the hearing. It is generally the responsibility of the Respondent to collate the bundle and to make six copies available for the use of the Tribunal Members, witnesses and parties at the hearing. The preparation of the bundle itself can be somewhat onerous in that the Tribunal will expect the documents to be placed in a logical order, paginated and identified in an index.
Witness Statements
By a specified date (typically two weeks before the hearing is due to start) the parties will be directed to exchange copies of the Statements which their witnesses will read out at the hearing. Usually this is accomplished by the representatives of both parties agreeing either to e-mail copies to each other at a specified time or to put them in the post on the same date. Statements set out the facts that a witness alleges. They should be drawn carefully and cross-referenced to documents in the bundle.
The Hearing
The Hearing will normally take place before a panel of three Tribunal Members, one of whom is an Employment Judge. Sometimes the Employment Judge sits alone. It will generally start with the Employment Judge specifying the issues in the case and indicating the procedure to be followed at the Hearing. Generally, a Claimant presents his case first although in an unfair dismissal case where the dismissal is admitted, it will be for the Respondent to go first. Witnesses read out their prepared Statements and are asked questions by the representative of the other party and perhaps by the Tribunal Members. When all the evidence has been heard, the representative for each party will be given the opportunity to make representations (i.e. to explain to the Tribunal why they think they should win the case). The party whose witnesses give evidence first delivers its representations last.
Judgment
Usually the Tribunal Members will withdraw to consider the outcome of the Hearing. They might return to the Tribunal Room to deliver the Judgment and Reasons or may indicate that the Judgment will be “reserved”. What this means is that a written Judgment will be sent to the parties, generally within four weeks. Sometimes the Judgment deals with who wins and if the Claimant is successful will specify another date when a hearing will take place to determine the awards that are to be made. Often further Directions will be given, dealing with documents or evidence, in readiness for what is called a “Remedies Hearing”.
Appeal
There is a right of appeal to the Employment Appeal Tribunal against the Judgment of an Employment Tribunal but it only arises in relatively few cases. It is not enough merely to disagree with the outcome. Generally it will be necessary for an appellant to show that the Tribunal might have made a mistake as to the law before he is permitted to pursue an appeal.
During the course of this procedure it is open to the parties to make applications to the Tribunal and indeed the Employment Judge can of his own motion issue Directions and require steps to be taken.
Although the Directions issued by the Tribunal will carry time limits, it is very unusual for a claim to be dismissed by reason of the Claimant’s failure to adhere to these time limits. Generally one has to make a number of applications and only in an extreme case will one of the parties effectively lose for failure to comply with time limits. Such applications are however commonly made in order to exert pressure on the other side.
Parties can also apply for Orders in the course of the proceedings. These might include the disclosure of additional documentation, to postpone or adjourn hearings, to amend the documentation which they have already filed or Witness Orders.
Costs
Awards of costs in the Employment Tribunal are relatively rare. Although in the County and High Court the general rule is that the loser will be ordered to pay the winner’s costs, there is no such general rule in the Employment Tribunal. Apart from some specific provisions, generally the only time that a costs order will be made is where one party successfully alleges that the other party has “in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by [that other] party has been misconceived”.
The term “misconceived” effectively means that the party has conducted the case without there being any reasonable chance of success.
It will be noted from this wording that, in deciding whether or not to award costs, the Tribunal is not concerned with what happened before the proceedings commenced. It is the conduct of the proceedings themselves that can give rise to an award of costs and not the actions of the parties before the claim was issued.
A party to a Tribunal claim should assume that, ultimately, he will have to pay his own legal costs.
Conciliation
Generally, when the claim is issued the Tribunal will send a copy of it to the Advisory, Conciliation and Arbitration Service (“ACAS”) who will in turn appoint a Conciliation Officer. It is the duty of that Officer to facilitate negotiations between the parties, with a view to their settlement.
Some Claimants bring proceedings assisted by the Citizens Advice Bureau and thus will incur no liability for costs. The CAB can sometimes arrange a barrister from the Free Representation Unit to represent the Claimant at the hearing. Other Claimants might be represented by solicitors under the terms of a Legal Expenses Insurance Policy, which is often part of a household or contents policy. Some solicitors will represent Claimants on a “no win, no fee” arrangement, taking in lieu of a fee a proportion of the financial award.
On the latest statistics (2008-9), 32% of all Tribunal cases are settled before they reach a hearing. There is always an element of risk in Employment Tribunal proceedings and it is very rare that a party can be absolutely certain that he will succeed. As a rule, at the conclusion of every Tribunal case, at least one party (occasionally both parties) will be disappointed at the outcome.
Inevitably, the longer a case goes on, the greater the legal costs incurred by the parties (generally with little prospect of recovering them from the other side). Although a Respondent might expect to win the case, it might nevertheless make commercial sense to agree to pay the Claimant a sum by way of settlement, so as to avoid the risk of losing and also the liability for additional legal costs that would arise if the matter was pursued all the way to a hearing.
A settlement negotiated through ACAS is confirmed in writing on Form COT3 whose wording will be agreed by the parties’ representatives. ACAS will typically ask the Respondent to prepare the first draft of the Agreement.
