What is an employment tribunal?

An employment tribunal is a type of legal dispute that deals with claims employees can make against their employers. These might be current or former employees or, occasionally, someone who has applied for work with your business [1].

As a business owner, you might find yourself summoned to an employment tribunal if someone you have employed feels you treated them in a way that breaks employment law [2].

You could be taken to an employment tribunal for claims of:

• Unfair dismissal
• Discrimination
• Unlawful pay [3].

There are about 100,000 employment tribunals each year in the UK. For example, between January and March 2021, 72,000 tribunal receipts were logged – with a third (33%) of these relating to employment matters [4].

Here, we’ll outline how employment tribunals work in England and Wales for employees and businesses that face allegations. Note that the rules are slightly different in Scotland and Northern Ireland – in the latter, they’re known as industrial tribunals.

What does the Employment Tribunal do?

An employment tribunal attempts to make decisions about disputes between a current or former member of staff and their employer. They are administered by Employment Tribunal, an independent group that sits beneath the HM Courts & Tribunals Service [5].

Tribunals are independent of government, and they start when someone notifies the Advisory, Conciliation and Arbitration Service (Acas) of their wish to make a claim.

Sometimes, businesses that face such complaints are offered the chance to settle out of court by Acas – this is known as the Early Conciliation service [6].

If this is not possible, the claim will be submitted to the employment tribunal – the process of which is as follows:

1. As an employer, you will get the chance to submit a statement to include your version of events.
2. You’ll exchange documents and may call upon witnesses ahead of a hearing.
3. At the hearing, the claimant (the current, former or prospective employee) and the respondent (the employer) are both asked questions about the grievance raised.
4. They’ll be quizzed for evidence to support their perspective.
5. The employment tribunal aims to reach a verdict and assess the level of compensation the employer might owe [7].

What are the grounds for an employment tribunal?

An employment tribunal can be levelled against your business for a range of complaints relating to employment law. There are some criteria that need to be met, however.

Employment tribunals must be:

• Made by employees. In some cases, workers (who are not under a contract of employment with the business) can also take their employer to a tribunal, but this isn’t always the case
• Initiated by people who have worked with their employer for a certain timeframe. This qualifying period varies – for unfair dismissal, it’s usually two years
• Filed before the deadline, using an early conciliation certificate.

What powers do employment tribunals have?

Employment tribunals have the power to:

• Make judgements regarding liability. This allows a tribunal to award outcomes, such as role reinstatement, re-engagement with the employer in a new role, or payment of wages due to the employee [8]
• Order payments. This can include compensation but may also include other costs. Payments may be requested by an involved party, or initiated by the tribunal itself [9].

Cost payments ordered by an employment tribunal may include:

• A deposit. This can be worth up to £1,000 per allegation. The employee will typically need to pay this if the tribunal considers their claim to have a limited chance of success
• Cost orders. This is where one party is instructed to pay the other for legal costs. Sometimes, costs are payable by the other party’s representative – these are known as wasted costs
• An aggravated breach order. A penalty you, as an employer, might pay to the state if you breached an employee’s rights in a way that is deemed to have aggravating features [10].

How do you make a claim to an employment tribunal?

People make a claim to employment tribunals by:

1. Notifying the Advisory, Conciliation and Arbitration Service (Acas) that you intend to make a claim.
2. Calling the Employment Tribunal customer contact centre with any questions.
3. Using an Acas early conciliation certificate number and key details to make a claim to the Employment Tribunal online (external link). You can also do the same by post.
4. The employer then replies to allegations within 28 days.
5. Attending a preliminary hearing. Here, the judge helps to ascertain whether the claim can go ahead and sets a timeframe.
6. Arranging documents and summoning witnesses. Wage slips, meeting minutes, contracts, and colleagues’ testimony can all be used to support or defend a claim.
7. Attending a tribunal hearing. This might be at the employment tribunal office closest to the impacted parties. You, or a lawyer, present a case – as does the other party.
8. Awaiting a decision by post [11].

What types of claims an employment tribunal can decide

Employment tribunals can decide on a wide range of claim types.

These include:

• Unfair dismissal
• Discrimination – such as unequal pay or being passed over for a promotion
• Unmet payment rights – for instance, unpaid wages, a salary set below the National Minimum Wage, or if holiday pay isn’t included in an employee’s final wage slip
• Unmet parental rights – such as the right for an employer to follow the legal maternity and paternity leave and pay requirements
• Breach of contract – if the employer’s side of the bargain isn’t kept
• Breach of working time regulations – such as asking an employee to work too many hours in a given day or week, or failing to accommodate breaks [12].

What’s the deadline for making a claim?

The deadline for making a claim to the Employment Tribunal is usually one day less than three months from the date the event happened. This applies to the early conciliation process – you then have a further month to finish making a claim.

For instance, if you dismiss someone on 2nd June, they will usually have until 1st September of the same year to start early conciliation for an unfair dismissal claim.

Some exceptions apply, though. For claims relating to redundancy or equal pay, the limit is usually six months rather than three. You might find there are different time limits if someone makes multiple claims about your business.

What does a strong employment tribunal case look like?

It can be difficult to assess how strong a case might be before a hearing takes place. The judge will look at the evidence to establish facts, then apply the law to reach a decision.

Citizen’s Advice suggests that people launching an employment tribunal should speak to an adviser or legal expert. They also advise them to think carefully about how evidence backs up their point of view. For employers, also, getting legal advice beforehand could help to make the picture clearer.

Is it worth going to employment tribunal?

If you are an employer, you’ll have to attend an employment tribunal if summoned. For employees, the picture is a little more complex – so it can be worth thinking about how likely a compensation pay-out is.

If an employer is in financial difficulty, they might not pay compensation. An employment tribunal is more likely to secure compensation pay-outs from big employers than small limited companies and sole traders, according to Citizens Advice [13].

Citizens Advice suggests checking certain things before starting a claim, including:

• If your employer has a history of restarting under a new name. This can mean they are more likely to avoid any debts
• If your employer has stopped trading or is insolvent. This can make it more difficult to get compensation, but there may still be ways. For instance, a sole trader who has stopped trading might owe personal assets [14].

What happens if you win a tribunal?

As an employer, if you win a tribunal brought against your business – that is, you are not found to be liable for damages – that may be the end of the process. You won’t pay any compensation.

However, the employee may decide to appeal the judgement – which may happen within two weeks of an employment tribunal’s decision. They’ll need to demonstrate that there was a mistake or bring forward new evidence [15].

What happens if you lose a tribunal?

If you lose an employment tribunal brought against your business, the judge can order you to:

• Pay compensation to the claimant
• Pay other damages – for instance, you might need to pay for any state benefits the claimant received because of their dismissal
• In rare cases, give the employee their job back
• Pay witness expenses and other fees [16].

Does employers’ liability insurance cover employment tribunals?

Employers’ liability insurance does not cover employment tribunals – this type of insurance is reserved for claims of work-related illness and injury. However, legal protection insurance can support a business facing employment tribunal allegations.

This type of cover can help pay to defend your legal rights if you dismiss an employee and legal proceedings follow. It can also cover an insured person’s wages for the time they take to attend a tribunal hearing, and pay compensation awarded through the tribunal.

References

1. https://www.gov.uk/courts-tribunals/employment-tribunal (external link)
2. https://www.gov.uk/employment-tribunals (external link)
3. https://www.gov.uk/employment-tribunals (external link)
4. https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-january-to-march-2021/tribunal-statistics-quarterly-january-to-march-2021 (external link)
5. https://www.gov.uk/courts-tribunals/employment-tribunal (external link)
6. https://www.gov.uk/employment-tribunals (external link)
7. https://www.unison.org.uk/get-help/knowledge/disputes-grievances/employment-tribunals/ (external link)
8. https://www.cipd.co.uk/knowledge/fundamentals/emp-law/tribunals/factsheet#gref (external link)
9. https://www.gov.uk/government/publications/employment-tribunals-powers-their-use-and-application (external link)
10. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/780614/employment-tribunal-powers-user-guidance.pdf (external link)
11. https://www.gov.uk/employment-tribunals/going-to-a-tribunal-hearing (external link)
12. https://www.citizensadvice.org.uk/work/problems-at-work/employment-tribunals1/employment-tribunals2/if-youre-thinking-of-making-a-claim-to-an-employment-tribunal (external link)
13. https://www.citizensadvice.org.uk/work/problems-at-work/employment-tribunals1/employment-tribunals2/if-youre-thinking-of-making-a-claim-to-an-employment-tribunal/ (external link)
14. https://www.citizensadvice.org.uk/work/problems-at-work/employment-tribunals1/employment-tribunals2/if-youre-thinking-of-making-a-claim-to-an-employment-tribunal/ (external link)
15. https://www.gov.uk/employment-tribunals/if-you-lose-your-case (external link)
16. https://www.gov.uk/being-taken-to-employment-tribunal-by-employee/lose-the-case (external link)