Essential guide to defending an employment tribunal

Although employees and employers can choose to follow an alternative dispute resolution procedure, some employee complaints are still heard at an employment tribunal. You need to take tribunals seriously. If you have well-thought-out procedures, and follow them, you can prepare good evidence making it easy to defend your actions.

The interpretation of employment law is moving in favour of the employee and awards are increasing, so it is important to understand the system and the way tribunals operate.

The employment tribunal process

Before the employment tribunal hearing

The employment tribunal hearing

The employment tribunal decision

Employment tribunal awards

Agreed settlements following an employment tribunal

1. The employment tribunal process

Employment tribunal hearings usually take place before a legally qualified employment judge and two lay members, one nominated by an employers' organisation and the other from a union or employees' body.

Decisions can be made by majority vote, though most are unanimous.

The employment tribunal process is impartial

• In an unfair dismissal claim it does generally start by assuming that there is a case for the employer to answer.
• Employment tribunals try to be guided by what is reasonable. They will take into account prevailing standards and practices in your industry and recognise that special difficulties can arise in smaller firms.
• Awards made by the tribunal are aimed at compensating the employee, not punishing the employer.

The starting point for tribunal decisions is statute law

• Employers must have followed fair and transparent disciplinary and grievance procedures. Failure to do so can result in an employment tribunal increasing any award payment by 25%.
• The Acas Code of Practice provides valuable guidelines, particularly in unfair dismissal cases.

Before claimants can issue a claim, they must contact Acas

• The claimant must submit an Early Conciliation (EC) form online or by post.
• Acas will offer conciliation to attempt to reach settlement between the two parties.
• If settlement is not reached, or either party refuses to engage, Acas will issue an EC certificate so that the claimant can proceed with the employment tribunal claim.

Where EC fails, the claimant can lodge an employment tribunal claim

• The claimant submits a form (ET1). They explain the basis of their complaint and state whether statutory workplace dispute resolution procedures have been followed.
• You will be sent a copy and must respond (on form ET3) within 28 days of the date the form was sent out, or risk losing your right to contest the case.
• What you say in your response is the case you will be putting to the tribunal, so give a considered reply.
• If you have a good reason, you can ask for an extension beyond the 28-day period.

You will be sent a date for the hearing

• Any request for a postponement should ideally be made immediately. There are limits on the number of times a postponement can be requested.
• If a date is just impossible for you, tell the tribunal, giving good reasons.
• When you reply, tell the tribunal if you think the case is likely to be complicated.

2. Before the employment tribunal hearing

When an application is made against you, it is the preparation you do before the hearing that is most likely to determine the outcome.

Check first to see whether the application is technically flawed

• For example, in unfair dismissal cases, the claimant must have two years' service, except where discrimination or other automatically unfair reasons for dismissal are involved.
• The claim must be made within three months of the date of termination - except where the claimant thinks the matter is being dealt with internally, or in rare cases, at the tribunal's discretion.
• If the claim is invalid on technical grounds, write to the tribunal. Ask for a pre-hearing review to get the claim thrown out.

Investigate the issue again, to make sure of your ground before getting into a fight

• The manager responsible may have been misleading you.

Resolve the claim amicably or settle if it arose from a genuine misunderstanding

• For example, explain the reasons why an expected promotion was not given.
• It may be best to reach an agreed settlement.

If you think the claim is almost certain to fail, request a pre-hearing review

• The tribunal will look at relevant documents.

Be clear about the costs and benefits of fighting the case at a hearing

• Even a fairly straightforward case can drag on for months.
• The cost in disruption and management time can be considerable. A case can also damage the credibility of your business.
• Some cases are worth defending to signal your resolve to other employees.

Prepare a realistic case strategy, based on your strengths

Prepare evidence to show the background to the case and to prove what happened

• General evidence provides the background - contracts of employment, employee handbooks and your HR policy statements.
• Specific evidence relates to the case itself.

You can seek further particulars of the claim from the other side

• For example, are there any further allegations that will be made against you?
• If you need more information, ask for it. If it is not handed over, write to the tribunal to make your request, compelling the claimant to give you the information.
• You must respond reasonably to requests for information from the other side. If you are on the receiving end of a request that you think is unreasonable or goes too far, ask the tribunal to verify it.

You will usually need to exchange documents in advance of the hearing

• You must prepare witness statements beforehand and agree a 'bundle' of relevant papers with the other side.
• Witness statements and the bundle must be handed over. You will need at least six copies, one each for the three members of the tribunal, both parties and the witness.

3. The employment tribunal hearing

Employment tribunal hearings are less formal than the courts. The running order is not necessarily fixed and belligerent questioning will be stopped. But the hearing will still be purposeful, with an emphasis on clarity, evidence and the merits of the case.

The hearing is public and open to the press

• The employer generally goes first in an unfair dismissal case and the claimant goes first in a discrimination case.
• If you do not turn up, the case is likely to go against you. If ill, send a medical certificate and ask for an adjournment.

Tribunals have their own rules, quite different from those in the courts

• Evidence is assessed on the balance of probabilities. You do not have to prove anything 'beyond reasonable doubt'.

For the main evidence, tribunals prefer witnesses to written statements alone

• Witnesses can be questioned under oath.
• The tribunal will itself generally question witnesses, in an informal manner.
• Do not have too many witnesses. Use your witness statements to establish straightforward facts.
• Provide witnesses to the main events.
• If you are cross-examined, remain cool, factual and polite.
• Bring in a senior company representative to explain your employment policies.
• Expert witnesses are rare in tribunals. Use one if the case turns on a technical point.
• In general, avoid character witnesses.
• Witness orders can be used by either side to compel witnesses to attend.

The two sides usually pay their own costs

• If the claimant belongs to a trade union, it may advise and represent him or her.

4. The employment tribunal decision

The decision will usually be announced at the end of the case or a few days later

• In some complex cases, the delay can stretch into weeks or even months.

Both sides are sent a written decision, with summary or full reasons for it

• Ask for full reasons if an appeal is possible.

If you do not like the tribunal's decision, you can ask it to review the case

• This must be done within 14 days of the decision.

You may want to appeal to an Employment Appeal Tribunal

• Appeals must be made within six weeks and be based on a point of law. Few succeed.

5. Employment tribunal awards

For unfair dismissal, the amount is made up of two elements

• A basic award, calculated on a fixed formula, taking into account age and service. This award is capped at £20,000.
• A compensatory award based on the loss of earnings and how unfair the dismissal was.
• Compensatory awards are capped at the lower of one year's gross wages or £115,115 - although they can be higher in certain cases (eg whistleblowing or health and safety claims).

Breach of contract awards in tribunals are capped at £25,000

• Alternatively, a claimant can make an unlimited claim in the ordinary courts. Typically, this might happen if a director claims substantial compensation under the terms of an employment contract.

Discrimination case awards are unlimited

• As well as loss of earnings, claimants can claim damages for injury to feelings.

6. Agreed settlements following an employment tribunal

Reaching a settlement, before disagreements reach an employment tribunal, may well be in your best interests.

In discrimination cases, where awards can be large and hard to predict, an agreed settlement removes the risk of a shock result.

A settlement may include a cash sum and other negotiable elements

• The settlement usually involves money and a reference, with agreed wording, if the employee has been dismissed.
• This reference is a key bargaining counter. No-one can usually oblige you to give a reference that does anything more than confirm the dates of employment and the employee may need more than that.
• A confidentiality clause may be a valuable part of the deal - something you cannot get from a tribunal, even by winning. Realistically, though, details of the settlement may still leak out. Bear in mind the impact of this on other employees.

There are two main routes to reaching a settlement

• Conciliation through Acas frequently leads to settlement.
• You can use a 'settlement agreement', under which the employee receives independent legal advice and can then waive his or her statutory employment rights, in return for an agreed settlement.
• These agreements are legally binding and can be drawn up before or after a claim has been brought. The employer usually pays the employee's legal costs.

Note

Employment law is complex and is changing rapidly. This factsheet reflects our understanding of the basic legal position as known at the last update. Obtain legal advice on your own specific circumstances and check whether any relevant rules have changed.