Tribunal Claims Procedure

The procedure for a claim at an Employment Tribunal (previously known as an Industrial Tribunal) is set out below. If you have any queries regarding this or if would like any further information please contact us on 01928 736672 or complete our questionnaire.

Bringing and defending claims in the employment tribunal.

In order to commence a claim, a claimant must present their claim form (ET1) to the tribunal within the time limit applicable to their claim. The tribunal will check that the correct form has been completed and received within that time limit before serving it on the respondent. The respondent must then present its response form (ET3) within the 28-day time limit, as advised by the tribunal.

Unless a tribunal or chairman orders otherwise, an ET1 and an ET3 may be given or sent by:

• Post.
• Fax or other means of electronic communication (for example, by e-mail or online).
• Personal delivery.

Commencing a claim

Once a claimant has established that an employment tribunal is the appropriate forum for their claim, they will need to:

• Complete a prescribed ET1 form.
• Identify the appropriate tribunal to which they should present their completed ET1.
• Decide on the means by which they will submit it.
• Submit the claim form within the time limits applicable to the claim they are bringing.

The time limit for submission of the claim form to the tribunal will be determined by the claim the claimant is bringing.

Responding to a claim

Where a tribunal accepts a claim, it sends a copy to the respondent and informs the respondent:

• How to present a response to the claim.
• The time limit for responding to a claim.
• What may happen if a response is not entered within the time limit.
• The respondent's entitlement to receive a copy of any judgment disposing of the claim.

When preparing to submit a response, a respondent needs to be aware of the following key requirements. It must:

• Use the prescribed ET3 form.
• Ensure it provides the required information.
• Within the 28-day time limit:
• submit its completed ET3; or
• make an application for an extension of time to submit its completed ET3.

If 28 days pass without the tribunal receiving the completed ET3 or an application to extend time to present one, a respondent may be prevented from continuing to participate in proceedings because:

• The tribunal will be entitled to use its discretion to issue a default judgment.
• The respondent will (subject to some limited exceptions) be debarred from taking any further part in the proceedings.

Questionnaires

In discrimination claims a claimant can serve a formal questionnaire on a respondent or prospective respondent to ask questions about:

• Their reasons for specified acts.
• Any matter that the claimant considers relevant to their claim (or potential claim).
• The provisions for service of a questionnaire are as follows:
• If the questionnaire is to be served before an ET1 is presented to an employment tribunal, the questionnaire must be served within three months of the date of the act that the claimant is complaining about.
• Once an ET1 has been presented to a tribunal, the questionnaire must be served within 21 days, beginning with the day on which the ET1 was presented (unless the claim is for disability discrimination, in which case the time limit is 28 days). The tribunal has discretion to permit service after the applicable time limit has expired.

In the case of complaints of discrimination on the grounds of sex, disability, race, ethnic or national origins, religion or belief, sexual orientation, or equal pay, it is specified that a response to a questionnaire must be given within eight weeks, starting with the date of service of the questionnaire. Other questionnaires are required to be answered within a "reasonable period" so it can therefore presumably be assumed that eight weeks is a "reasonable period".
A reply to a questionnaire can be used as evidence before a tribunal. However, a respondent is not obliged and cannot be ordered to serve a response.

Breach of contract claims

Since 12 July 1994, the contractual jurisdiction of employment tribunals has been governed by:

• Section 3 of the Employment Tribunals Act 1996 (ETA 1996).
• The Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994).

Employees have the right to bring breach of contract claims against their employers in the employment tribunal where those claims are not excluded and they arise or are in existence on the termination of their employment. Employers do not have a free-standing right to bring breach of contract claims against employees or former employees in the employment tribunal. Employers may counterclaim when a breach of contract claim is brought against them. The nature of the counterclaim and the exclusions from counterclaims are similar to those required of and imposed on a breach of contract claim brought by an employee.

The limit on the aggregate value of a breach of contract claim in the tribunal is £25,000.

Conciliation of tribunal claims.

When a claim is served on a respondent, if the provisions for conciliation apply to the claim, the tribunal notifies the parties that the services of a conciliation officer will be available to them.
Conciliation is only available in respect of employment rights for which the relevant statute has made express provision.
Since 1 October 2004 a conciliation officer's duty to promote settlement has been limited to a defined period of time after which, in contrast, they have a discretion to continue to conciliate. The aim of defined conciliation periods (during which Acas has a duty to conciliate) was to encourage parties to negotiate as early as possible. However, the Employment Bill includes proposals to remove the fixed conciliation periods and, as a result, Acas no longer applies them
Until the proposals in the Employment Bill become law, there are three types of conciliation period the length of which depends on the type of claim:

• The open conciliation period (which has no fixed time limit).
• The short conciliation period (which is limited to seven weeks).
• The standard conciliation period (which is limited to 13 weeks).

Where a fixed period for conciliation applies, when a tribunal serves a claim on a respondent, it notifies the parties of the date on which the provision of the conciliation officers' services ends and that, thereafter, those services will only be available in limited circumstances.

Acas conciliation is only one way in which parties can consider settling a tribunal claim.
Once a claim and response are accepted: case management
Once the claim and response have been received and accepted by the tribunal, the ET Rules give chairmen and tribunals considerable power and freedom to manage the progression of cases to full hearings through the use of pre-trial orders and directions, whether on the application of either party or on their own initiative. These enable the tribunal to:

• Identify the issues between the parties at an early stage
• Give any necessary orders (for example, for the provision of further particulars, disclosure, the exchange of witness statements and/or to secure witness attendance).
• Impose a timetable by which the parties are required to prepare for a full hearing.

Some chairmen will, on review of the tribunal's file after the response has been received, issue orders setting out a timetable of steps for both parties to take. Others will direct the parties to attend a case management discussion (CMD) that will be held by a chairman sitting alone. In addition to the action taken by the chairman, the parties may apply for general or specific orders to be issued, varied or revoked at any stage of proceedings.

In addition, the parties should consider the following specific case management issues:

• Identifying the correct parties to proceedings.
• Clarifying the issues in a claim or response.
• Disclosure of evidence.
• Withdrawing a tribunal claim.

Pre-hearing reviews (PHRs) and deposit orders.

A pre-hearing review is an interim hearing that may be called by the tribunal of its own motion or on the application of one of the parties, and will usually be held in public by a chairman sitting alone.
PHRs are principally used to identify weak claims or responses and to discourage a party from continuing with them. In addition to considering whether a claim or response has little prospect of success (in which case the party can be ordered to pay a deposit to be allowed to continue), a claim or response can be struck out on various grounds at a PHR.

Applying to postpone or adjourn a hearing.

In a number of circumstances a party may wish or need to request a postponement of a hearing date, or to adjourn a hearing. Examples of these are where:

• Hearing dates have been fixed without reference to the parties.
• A party or witness becomes unwell.
• A party or witness has unavoidable or important business commitments.
• The manner in which one party (or a representative) has conducted proceedings means preparations have been delayed and the other party is not properly prepared for the hearing.
• A point of law relevant to the proceedings is waiting to be decided in a higher court.
• A party wishes another set of proceedings (for example, before another tribunal, the EAT or other civil courts or before the criminal courts or a professional body) to be concluded before the tribunal hears the claims before it.

Witnesses and hearing bundles.

In general, tribunals will direct that witness evidence must be provided in the form of written statements, to be exchanged between the parties before the hearing. Even where such a direction is not given, a written statement of a witness's evidence should be prepared.

The tribunal may direct that, after witness statements have been simultaneously exchanged between the parties, supplemental statements should be provided, responding to the other party's witness evidence. If such a direction is given by the tribunal the parties are very likely to be prevented from asking any further questions of their witnesses at the hearing. The preparation of comprehensive witness statements, referring to relevant contemporaneous documents in the hearing bundle, is therefore extremely important.

When a party believes that a person has relevant evidence but will not attend the tribunal to give this evidence voluntarily, they may apply to the tribunal for a witness order compelling that person to attend.

In theory, once both parties have considered each other's documents, only documents relevant to issues still to be determined by the tribunal should be included in the common bundle. In reality, the content of the bundle is often simply an amalgamation of the two lists. However, it is important to try to limit the number of documents that are put before the tribunal to those to which witnesses are likely to refer or to have put to them in cross-examination.

Substantive tribunal hearings.

As part of final preparations for a tribunal hearing, the parties will want to ensure that their representative is fully briefed and that their witnesses know what to expect when they appear in the tribunal, particularly when they have not been a witness or attended a tribunal before.

The day of the hearing.

The procedure that is followed on the day of a tribunal hearing, from arrival at the tribunal building, being called into the hearing room and the course of evidence to closing submissions is set out here .(Make“here”a link to another page which sets out this procedure).

Judgment and remedies.

At the end of a full tribunal hearing, the tribunal will try to come to a unanimous decision on all the issues before it and gives its decision in the form of a judgment. A judgment may be given orally at the end of a hearing or it may be reserved and a written judgment issued subsequently.

A judgment may deal with the question of liability only, with remedy to be determined at a later hearing, or it may deal with both liability and remedy. This will depend on the evidence that has been heard at the original hearing, as in many claims the tribunal will not be in a position to determine remedy if they have not heard details about the claimant's losses at the original hearing.

A judgment must include reasons, either oral or written. These can be given orally at the time the judgment is issued or reserved to be given in writing at a later date.
If reasons for a judgment are given orally, written reasons will only be provided if they are requested by one of the parties:

• At the hearing.
• In writing, within 14 days of the date on which the judgment was sent to the parties. This time limit may be extended by a chairman if they consider it just and equitable to do so.

A party which is considering an appeal to the EAT will need a copy of the tribunal's written reasons; not only will they need to be considered to assess the merits of any appeal, but a copy of the written reasons must be attached to a Notice of Appeal if an appeal is submitted to the EAT.

Review and appeal of tribunal decisions.

Public policy dictates that there should be finality in litigation in all proceedings before judicial bodies. In an employment context, this means that tribunal decisions should only be re-opened in very limited circumstances. Once a tribunal has made a decision, the decision can be challenged by two means:

• Asking the tribunal to review its decision.
• Appealing the decision to the EAT.

Review of tribunal decisions.

Reviews are intended, in certain judgments and decisions, to correct specific errors or to deal with relevant new evidence that has only become available since the original tribunal hearing. Once it has undertaken a review, a tribunal may confirm, vary or revoke its original decision.
The principal tribunal judgments and decisions that can be reviewed are:

• A decision not to accept a claim, response or counterclaim.
• A judgment (other than a default judgment) including an order for costs, expenses, preparation time or wasted costs.

In addition to reviewing a decision or judgment of the type referred to above, tribunals have the power to correct clerical mistakes without the need for a formal review or appeal by use of the "slip rule".

Appealing a tribunal decision.

A party may appeal a tribunal decision to the EAT only on a point of law. They cannot appeal on the ground that they are unhappy with the outcome. The EAT will not interfere with the tribunal's findings of fact unless they are "perverse"; in other words, the tribunal reached a conclusion that no tribunal could properly have reached on the facts before it (which amounts to an error of law).

Costs in the employment tribunal.

Costs do not "follow the event" in employment tribunals as they do in civil courts. If a party is successful in bringing or defending a claim before the tribunal, they will not necessarily benefit from an order that the unsuccessful party pays their costs.
The costs regime in employment tribunals differentiates between orders that might be made in favour of legally represented parties (costs orders) and those that might be made in favour of unrepresented parties (preparation time orders).

A tribunal or chairman may also make a wasted costs order against a party's representative.

An overview of this procedure can be see below.