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Going to the Employment Tribunal – An Overwhelming Prospect or a Chance of Justice?

Do many people raise Employment Tribunal claims?

The number of Employment Tribunal claims raised is not actually particularly high compared to the working population in the UK.  Statistics suggest that in April 2018 to March 2019 just over 120,000 Employment Tribunal claims were raised in the UK.  However, statistics also suggest that the Employment Tribunal only made awards for compensation in 660 unfair dismissal cases, and in 114 discrimination cases, in the same period.  There are a variety of reasons why the number of awards made is much lower than the number of claims raised.  Some claims are for more basic matters such as deductions from wages, redundancy pay and holiday pay.  The vast majority of cases settle without the need for a full evidential hearing before the Employment Tribunal.  Of course, in the cases that proceed to the evidential hearing, some Claimants will be successful and made an award, whereas others will not.

Should raising an Employment Tribunal claim be a last resort?

In many situations raising an Employment Tribunal claim should be a last resort.  Employees with grievances should, if they have a reasonable employer, be afforded the opportunity to pursue a grievance process and if necessary an appeal against the grievance decision.  Similarly, employees who have been disciplined or dismissed should have been given an opportunity to appeal against the decision internally.  However, not all employers follow reasonable procedures and in some cases, appropriate internal options and appeals are not made available to employees.  There is no doubt that employers in some cases will “call the employee’s bluff”, and not make any offer to resolve matters unless they see that the employee is serious about raising legal proceedings.

Employee Grievance

An employee may also feel that the employer has conducted itself in such a way that the trust and confidence between the parties have been destroyed, and/or that any internal process is going to be a waste of time.  Employees should be careful and should take advice before forming this view or acting upon it, because in some cases, if an employee has failed to follow an internal grievance or appeal process, this can have an impact upon the merits of their claim (for example in a constructive unfair dismissal claim where the employer may argue that it has not had an opportunity to put right the matter which the employee has complained of) or any compensation awarded –  in certain circumstances compensation can be reduced by up to 25% if an employee has unreasonably failed to follow ACAS procedures.

Employees should also try to be aware of any time bar considerations at an early stage.  It is a common misconception that if an employee is pursuing an internal grievance or appeal then the time limits for raising an Employment Tribunal claim has not started running, or have “paused”.  This is not the case.  The clearest example of this is in an unfair dismissal claim.  The time limit for commencing ACAS early conciliation (which is necessary before most Employment Tribunal claims can be accepted) will begin to run from the date of dismissal and it will not be paused or extended by an appeal against dismissal, regardless of how quickly, reasonably or otherwise the employer deals with the appeal.  Similarly, in discrimination claims some employees will think that they will be able to raise claims at some point in the future because as they remain employed they believe their time limits have not started running.  Again, this is incorrect.  Generally speaking, time limits for beginning ACAS early conciliation in discrimination claims will begin to run from the date of the discriminatory acts which the employee complains of.  ACAS early conciliation must generally be undertaken on time before an Employment Tribunal claim can be pursued.  If it is not, the Employment Tribunal can refuse to hear the claim on that basis.  For this reason, the raising of an Employment Tribunal claim is not always the last resort.  Sometimes ACAS early conciliation needs to be undertaken, and an Employment Tribunal claim raised, to keep the Employee’s options open even if internal proceedings are continuing, otherwise the right to claim may be lost forever.

Is the Employment Tribunal process complicated?

For an experienced Employment Tribunal solicitor, in some cases, the procedure involved in an Employment Tribunal claim can be relatively straightforward, whereas in other cases this can be complicated even for an employment solicitor of many years’ experience. 

In some more straightforward cases, after the claim has been raised and the employer (or any individual respondents such as individuals accused of discriminatory acts) have been given an opportunity to respond in writing, the Employment Tribunal will fix an evidential hearing straight away. For example, this may happen in a claim relating to unpaid wages.  In other cases where a decision is needed on a particular area which may affect whether or not the claim can be successful at all, such as whether or not an employee is “disabled”  under the Equality Act 2010, or whether or not the employee’s claims have been raised in time, the Employment Tribunal may fix a Preliminary Hearing at which evidence can be given and submissions made on those particular points. 

In other cases involving traditionally more complex areas of employment law, such as discrimination claims and whistleblowing (“protected disclosure”) claims, the parties may be asked to complete an Agenda form in which they have to make very clear exactly what factual claims they are making and what parts of the relevant Employment Law legislation they claim apply to those facts.  A different kind of Preliminary Hearing tends to be fixed in those kinds of cases.  This is a more procedural hearing at which an Employment Judge will try to ascertain the matters in dispute between the parties, what the Claimant’s claims and the Respondent’s defences are, and what witness and documentary evidence may have to be considered in the case to allow the Employment Tribunal to arrive at a decision in due course. 

There can be further procedural matters which have to be dealt with in the run-up to an evidential hearing in an Employment Tribunal case.  For example, the parties are entitled to seek “further and better particulars” from each other in relation to what the other party’s position is on the facts.  The parties are also entitled to ask each other to produce documents that are relevant to the facts in dispute.  If either party does not comply with reasonable requests, then the Employment Tribunal can be asked to make orders requiring information or documentation to be provided.  These are valuable tools, but they have to be used at the right time in a case in order that everything can be prepared in advance of the final Employment Tribunal hearing.  A full evidential hearing will be required in all Employment Tribunal cases where there is a dispute on the facts. 

As you can see from this short summary, the different stages in an Employment Tribunal claim can vary from case to case.  In theory, the Employment Tribunal system has been set up to allow parties to represent themselves if they wish.  However, the reality is that, in more complicated unfair dismissal, discrimination and detriment cases, the parties tend to instruct Employment Law solicitors to assist them, and indeed the parties who attend preliminary hearings can find themselves struggling to state their case to the Employment Tribunal in legal language, and it can sometimes be suggested to them by the Employment Tribunal itself that they obtain the services of an Employment Law solicitor.

Is the whole Employment Tribunal process too overwhelming to be worthwhile?

Definitely not. 

Of course, dealing with any kind of litigation is difficult and can be stressful depending upon the individual.  However, in our experience Employment Tribunal Judges and panels are reasonable to deal with.  They try to make Claimants, Respondents and witnesses feel at ease.  This is in everyone’s interest in order that the Employment Tribunal can hear a fair reflection of the facts from the witnesses. 

A good Employment Law solicitor can guide an employee from the start to the finish of a case, from the stage where the employee is still employed and has a grievance, all the way to the point where they receive a Judgement from the  Employment Tribunal and wish to either enforce that Judgement, or appeal against it if they are unhappy with it.  We believe the best way to answer the question of whether or not an Employment Tribunal claim should be raised is for the employee to ask themselves how important the matter is to them.  If an employee has been wronged by an employer, the wrong is having a serious impact on them, and they have done all they can to try and solve the situation, then it is absolutely reasonable to proceed with an Employment Tribunal claim.  This can make the employee feel better generally because they have taken action and stood up for themselves.  If successful, the employee may put themselves in a better position financially and may be able to recoup the losses they have incurred as a result of the employer’s conduct towards them.  In addition, raising an Employment Tribunal claim may make an employer think twice about treating another employee in the same way in the future, or may encourage the employer to put in place practices to ensure that similar problems do not occur again.  This can be true in all kinds of cases, including extremely valuable ones and claims for smaller amounts.

How can I get my Employment Tribunal claim up and running?

As indicated above, the first stage in an Employment Tribunal proceeding is often the initiation of ACAS early conciliation.  This can be initiated online at the following link: https://ec.acas.org.uk/Submission/SingleClaimantPage­­­­­­. 

However, it is often sensible to have taken advice from an Employment Law solicitor before you reach this stage, if possible. 

It is crucially important to ensure that ACAS is given the correct details, to the letter, of the employer which you wish to claim against, and any individuals that you wish to claim against.  ACAS will also wish details of the dates of important events and the kinds of claims that you wish to make.  When you reach the stage of raising an Employment Tribunal claim, it is important that you have an ACAS early conciliation certificate, and the details that you use in the Employment Tribunal claim form (ET1) in terms of the employer and any other parties that you wish to claim against should be consistent with the details that you provided to ACAS.  In addition, it is important to ensure that the kinds of claims that you wish to make in the Employment Tribunal have actually been the subject of the ACAS early conciliation process. 

When the time comes to make the Employment Tribunal claim, this can also be done online: https://employmenttribunals.service.gov.uk/apply

Again, it is sensible to take advice from an Employment Law solicitor before actually raising the claim, if time limits allow.

Do Employment Tribunals favour employers over employees?

Again, the answer is “definitely not”. 

In our experience, Employment Tribunal Judges and panels are fair and unbiased. 

There are some legal tests which apply in different kinds of cases, some of which can make the case more challenging for the employee, and others which can make the case more challenging for the employer.  For example, in unfair dismissal cases relating to misconduct, there is a “range of reasonable responses” test which applies, and if the employee cannot show that the employer’s decision was outwith that range of reasonable responses than it can be difficult for the employee to win the unfair dismissal case.  This means that it is not simply a question of whether the employer in question was reasonable on the day of if its decision.  It is more a question of whether or not any reasonable employer could have reached the decision that the employer did.  Of course, there are other aspects to unfair dismissal cases, such as whether correct procedures have been followed by the employer, and whether the employer has treated the employee harshly compared with other employees, which can also have a significant bearing. 

On the other side of the coin, in discrimination cases it is generally the position that if the employee can state sufficient facts, which, if they were found to be true, would suggest that discrimination may have occurred, the onus of proof then shifts onto the employer to prove that the reason for its conduct was a non-discriminatory reason.  In some situations, this could mean that a discrimination case is more difficult for an employer to successfully defend than a basic unfair dismissal case. 

Regardless of all this, we find that Employment Tribunals are in the business of trying to come to a decision on the facts and the law which is fair to all parties.  We would encourage employees not to be put off raising proceedings by any suggestions that Employment Tribunals favour employers.  In many cases, bringing the case before the Employment Tribunal is the employee’s opportunity to obtain a fair hearing when they believe they have been wronged.  As we suggested in the heading to this article, the Employment Tribunal can provide the chance of justice.

Duncan McFadzean is an employment law solicitor with more than 20 years’ experience advising and representing clients in relation to employment law matters in the workplace and representing them in the Employment Tribunal.  Duncan heads our employment law team in Edinburgh and can be contacted on 0131 554 8649, or drm@elpamsolicitors.co.uk.

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