In full form, the employment tribunal has three members: the employment judge (a qualified lawyer) and two lay members, one with managerial or business experience and one with experience of representing employees.
However, on unfair dismissal claims and many other matters, the employment judge normally sits alone.
A party may choose not to be represented but to conduct its own case. If representation is desired, it need not be by a lawyer. Legal aid is not available (except in Scotland).
◉ ‘early conciliation’ - a prospective claimant must contact Acas to allow it to explore a settlement of the dispute for a period of one month. Only if Acas certifies that this procedure has not resulted in a settlement will the individual be allowed to present a claim to the employment tribunal (with the Acas certification)
◉ the employee or ex-employee (claimant) completes the claim form (Form ET1) and lodges it, normally within three months (but capable of extension in certain circumstances, including the time taken by unsuccessful early conciliation – see above), with the tribunal
◉ the tribunal serves a copy on the employer (respondent) and notifies Acas
◉ the employer has 28 days to enter a response (Form ET3). If this time limit (or any extended limit agreed by the tribunal) is not complied with, the tribunal will normally issue a ‘default judgment’, finding in favour of the claimant
◉ Acas assigns a conciliation officer to promote a settlement without the need for a hearing.
There are two legally valid ways of settling a claim (or a dispute over statutory rights that has not yet resulted in a claim) – a settlement drawn up after conciliation by Acas or a settlement (formerly ‘compromise’) agreement.
The process of conciliation is continued by Acas even where early conciliation (see above) did not succeed.
In conciliation, the Acas officer has no duty of confidentiality to the parties and cannot advise them on the merits of their cases.
Any settlement reached is recorded on a Form COT3 and signed by both parties or their authorised representatives. In addition to specifying the core agreement, the settlement will usually include a time limit for payment of any agreed sum and may feature obligations on other subjects, such as the provision of a reference and the maintenance of confidentiality.
This is reached directly, without the assistance of Acas, between the employer and the employee. The parties must be advised beforehand by a ‘relevant independent adviser’ (a qualified lawyer or, with certified competence, a trade union official or advice worker).
To be legally effective, a settlement agreement must be in writing, specify the claim(s) or proceedings it covers, identify the adviser (who must have appropriate insurance cover) and explicitly confirm that these conditions have been met.
First, there is a ‘sifting’ stage, in which an employment judge reviews the claim (ET1) and response (ET3) and has the power to strike out either if it has no reasonable prospect of success.
There are various types of proceedings in the tribunal: a preliminary hearing; a full (or final) hearing; and a reconsideration.
A preliminary hearing can cover case management issues, preliminary/jurisdictional points (see below) and/or the merits of the case. The tribunal may rule that a claim is inadmissible or, if it has no reasonable prospect of success but was not caught at the sifting stage (see above), strike it out. It may also require the claimant to pay a deposit to be allowed to continue with any claim, allegation or argument that is considered to have no reasonable prospect of success (maximum £1,000 for each such claim, allegation or argument).
Before the case is fully heard, the tribunal will specify one or more dates for a full hearing (frequently when first issuing the claim to the employer – see above) and, sometimes at a preliminary hearing (perhaps done by telephone), will usually direct either or both parties:
◉ to provide further particulars of the case
◉ to give relevant documents (or copies) to the other party, and/or
◉ to exchange written statements of the evidence of each witness who will appear at the full hearing.
Failure to comply with an order can result in the case being struck out and/or the party being fined.
The tribunal can also order the attendance of a witness. Disobedience without excuse can result in the witness being fined.
In order to give the tribunal jurisdiction to hear the case, the claimant may need to prove (if any of these matters is disputed) that he or she:
◉ is or was an employee of or worker for that employer
◉ is protected – not one of the excluded classes (such as Crown employees, police and mariners)
◉ is qualified to complain (that the time limit has not been exceeded)
◉ was dismissed – if applicable.
There is often a separate, preliminary hearing (see above) to consider one or more of these points, on which evidence from witnesses is permitted.
Similarly, a preliminary hearing might be necessary in a case under TUPE, to determine the preliminary (but fundamental) matter of whether there was a transfer and, therefore, who will be liable for any finding of unfair dismissal.
A hearing may be postponed by order of the tribunal, either of its own motion or on application of a party for good reason.
A party is generally limited to two postponement requests. Any further request or application will be granted only where:
◉ both parties consent to postponement in the interest of exploring settlement;
◉ the request/application was necessitated by the act or omission of another party or the tribunal; or
◉ there are exceptional circumstances.
and, where the request/application is made less than seven days before a hearing date or at the hearing itself, with the possibility of a costs or preparation time order (see below) being made against the party applying.
The party under the burden of proof starts by giving evidence through relevant witnesses (who take the oath or affirm) and supporting documentation. Any prepared written statement of evidence that has been disclosed in advance to the other party (in accordance with the tribunal’s order – see above) is generally ‘taken as read’ (so that it does not actually have to be read out on the day). Each witness is open to cross-examination by the other side and to questioning by the tribunal. The same process applies when the other party in turn presents its case.
On completion of the evidence, each party makes a closing statement to the tribunal (the party under the burden of proof goes second).
The employment tribunal may give a decision on the day or later (a reserved decision). It may be unanimous or by a majority. It is always provided in writing, in either full/extended form (which is mandatory in discrimination cases) or in brief/summary form.
The remedy or award for a successful claimant can be considered at the conclusion of the final hearing (if the decision is given then) or at a separately scheduled hearing on that specific subject.
Unless it is paid to the successful claimant within 14 days of the tribunal's decision on remedy, an award of compensation attracts interest from the day after the date of that decision. This is at the rate of 8% per annum.
An award for the costs incurred by a party in successfully bringing or defending a claim is not automatic. However, the employment tribunal has the discretion, and in a few specified circumstances the obligation, to make a costs order (in favour of legally represented parties) or a preparation time order (in favour of parties who are not so represented).
Where it considers there have been 'aggravating features' underlying a finding against an employer (such as deliberation, malice, the presence of a dedicated HR team, repeated breaches), and even if it makes no other financial award against that employer, an employment tribunal also has the power to impose a financial penalty. This is of 50% of the financial award (if any), subject to a minimum of £100 and a maximum of £20,000. Any such penalty will be discounted by 50% if it is paid within 21 days.
Enforcing payment by employers
If an employment tribunal's award (including any accrued interest) or costs order or any settlement sum is not paid in full after a period of 42 days or more from the date of the award, order or payment date specified under the agreement, the successful claimant may invoke a procedure to enforce payment.
An enforcement officer will issue to the offending employer a 'warning notice' containing a specified date, at least 28 days thereafter, by which the debt must be paid. If it is not, a 'penalty notice' will follow, stipulating the payment of an amount equivalent to 50% of the unpaid amount (minimum £100, maximum £5,000). If, within 14 days of the penalty notice, the employer both pays the unpaid amount (to the successful claimant) and the penalty (to the Secretary of State), the latter will be reduced by 50%.
From December 2018 employers who fail to pay a Tribunal award, can be ‘named and shamed’ on the government website by the Department for Business, Energy and Industrial Strategy (BEIS), along with those who fail to pay the NMW.
The tribunal’s reconsideration of its decision ‘in the interests of justice’ may be requested, within 14 days of the written record of the decision being issued, by a party to proceedings or ordered by the tribunal itself of its own motion because of:
◉ an administrative error
◉ the party’s non-receipt of the notice of hearing
◉ the making of the decision despite the justified absence of the party
◉ the availability of new evidence
◉ ‘the interests of justice’.
These can be made, on points of law only, to the Employment Appeal Tribunal.
Subsequent appeals go upwards to the Court of Appeal (or, in Scotland, the Court of Session) and the Supreme Court.
Referral to the European Court of Justice
This may be possible for a ruling on the scope and interpretation of EU Directives and their effect on UK legislation.
These are the County Court, the High Court, the Court of Appeal and the Supreme Court. Employment disputes that are based exclusively on the contract of employment (as opposed to rights created by employment legislation) are sometimes heard by these courts as an alternative or sometimes as a practical necessity. For example, an employment tribunal can only hear claims for breach of contract if they are on termination of employment and can only award a maximum of £25,000. In addition, there is scope for an equal pay claim to be instigated in the ordinary courts.