Who can make a claim to an employment tribunal?

An employee or ex-employee may have grounds for an employment tribunal claim if they have been treated unlawfully, unfairly or wrongfully by an employer in relation to their employment.

It may be possible to claim against a current employer, former employer or a potential employer, as well as against employment-related organisations (eg a trade union) and persons employed by an employer or organisation.

Examples of the types of potentially employment tribunal claims are:

• unfair, wrongful and constructive dismissal
• sex, race, disability, age, pregnancy and maternity, marriage and civil partnership, religion or belief and sexual orientation discrimination
• whistleblowing
• victimisation
• breach of contract.

How long do you have to make an employment tribunal claim?

Generally, claims must be received by an employment tribunal within 3 months of the complaining act (ie 3 months less one day). However, this can be extended by Acas early conciliation by up to 6 weeks if the parties agree.

The exceptions are claims for a statutory redundancy payment, equal pay and unfair dismissal for taking part in official industrial action and unlawful exclusion/expulsion from a union which are all within 6 months and a claim for unlawful infringement of human rights by a public body, which is within 1 year.

These time limits are strict and even if the claim is received by an employment tribunal a day late, the employment tribunal may decide that it cannot hear such a claim. The employment tribunal will decide whether it was either reasonably practicable for the claim to have been presented in time or whether it is just and equitable to extend time. Each test is based on the type of claim presented to a tribunal.

Claims of unfair dismissal, wrongful dismissal and breach of contract cannot be started until employment with an employer has effectively ended. The exception to the rule is where a period of notice is being worked or in a redundancy situation where terms and conditions of employment have fundamentally changed.

What is Acas early conciliation?

In most cases, before an employment tribunal claim can be made, an employee or ex-employee must first make an early conciliation notification to Acas, unless there is an exception (eg if you are part of group of people making a claim against the same employer and one person has already made a request to Acas in the same dispute).

In order to commence Acas early conciliation, the easiest way is to complete an online Early Conciliation Notification Form. After the form has been submitted, it will be automatically acknowledged, by email or by post.

Acas will then aim to contact an employee or ex-employee ( or their representative) within 2 working days.  

If a settlement cannot be reached, or the parties do not want to engage in any settlement discussions, the conciliation officer will issue a certificate with a unique reference number, which will allow an employee or ex-employee to bring an employment tribunal claim.

How do you make an employment tribunal claim?

The Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 set out the rules and procedures, which govern employment tribunals.

If an employee or ex-employee brings a claim against an employer they will be called the Claimant. The employer defending the claim will be called the Respondent.

To start proceedings in an employment tribunal, an employee or ex-employee must complete a Claim Form (ET1). The ET1 form can be obtained from the HM Courts and Tribunals Service website and must be completed in full. 

An ET1 is normally submitted online.

What happens after a claim has been accepted by an employment tribunal?

Once an employment tribunal receives a claim, a tribunal will either accept it or reject it. An employment tribunal can reject a claim if the Claimant:

• does not use the prescribed ET1
• fails to provide the minimum information in the ET1
• fails to provide the Acas unique reference number
• provides an ET1 but there are substantive defects (eg if the tribunal does not have jurisdiction to determine a claim because you have not been employed by the Respondent continuously for 1 year).

If a claim is rejected, the Claimant can apply to the employment tribunal for reconsideration if the decision to reject the claim was either wrong or the error can be rectified.

If the claim is accepted by an employment tribunal, it will inform the Claimant (or someone acting on their behalf eg a solicitor) of this and send a copy to the Respondent.

The Respondent will then have 28 days from receipt of the ET1 to defend the complaint(s). The Respondent must complete a Response Form (ET3) if it wishes to contest your claim.

The Respondent may apply for an extension of time within which to present its response explaining why it cannot comply with the time limit.  

As with an ET1, an employment judge may decide not to accept a Respondent’s response if the prescribed ET3 has not been used or it does not provide the required information or that it has been received out of time. In such case, the Respondent can apply to the employment tribunal for reconsideration if the decision to reject the response was either wrong or the error can be rectified.

Where a Respondent does not present a response in time or decides not to contest a claim. An employment judge can make a judgment in the Claimant's favour if there is sufficient material to do so. Otherwise a, hearing will be fixed to determine the claim.

As soon as practicable after the employment tribunal receives an ET3, an employment judge will consider the ET1 and ET3 and will decide whether there is an arguable claim and defence. The employment judge may decide that all or parts of either the ET1 or ET3 should be dismissed as the employment tribunal has no jurisdiction to consider it (ET1 only) or it has no reasonable prospects of success.

If the ET1 and ET3 are accepted, an employment judge will either give directions for the management of the case, together with time limits for compliance with those directions, or have the case listed for a preliminary hearing if the case has complex issues. The directions will normally involve disclosure of documents in the parties’ possession, details of the compensation which the Claimant is seeking with supporting documents, the preparation of a bundle of documents for the hearing, which the Respondent would normally do and the exchange of typed witness statements.

An employment tribunal will notify parties of a final hearing by way of a formal notice. The length of the final hearing will be dependent on the complexity of the issues and the number of witnesses giving evidence.

At the final hearing, the case will normally be heard by an employment judge (who is legally qualified and either a barrister or solicitor) alone. If the case is one of discrimination, in addition to an employment judge there will normally be two wing members: one will usually have a union background and the other member human resources background.  Decisions are made between the employment judge and the two wing members. A decision does not have to unanimous and indeed the employment judge can be outvoted. In certain cases, an employment judge may sit alone (ie without wing members).

An employment tribunal may either on its own initiative or on the application of a party, list the case for a preliminary hearing to determine certain preliminary issues.

What happens if the employment tribunal claim is successful?

If a Claimant is successful at the final hearing, an employment tribunal can make financial awards (dependent on the complaint) as follows:

• compensation ie the amount claimed (eg non-payment of wages)
• a compensatory award (unfair dismissal cases only): loss of wages after dismissal, including pension contributions and/or unpaid wages and/or failure to pay notice money
• a basic award (unfair dismissal cases only)
• a statutory redundancy payment (redundancy cases only)
• a protective award (in collective redundancy situations only)
• injury to feelings and interest (in discrimination cases only).

There is a statutory maximum amount on compensatory awards for unfair dismissal, which is the lower of 12 months’ pay or £93,878* (and changes annually). This is based on the Claimant’s losses after the deduction of income tax and National Insurance contributions to the date of the hearing and future losses (based on the length of time the employment tribunal decides it would take for the Claimant to be in the same financial position that they were in before the dismissal. In an unfair dismissal case, an employment tribunal will also make a basic award (based on the Claimant’s age and length of service), equivalent to a statutory redundancy payment, which is a maximum of £17,130* (and changes annually) *figures for 2022-2023

There is no upper limit on the compensation an employment tribunal can award in discrimination claims and in unfair dismissal claims if the Claimant was dismissed for raising a health and safety issue or making a protected disclosure.

In a successful claim of unfair dismissal, in addition to compensation, the Claimant can request that the employment tribunal order reinstatement or re-engagement (ie the same job or similar job with the Respondent). If the Respondent fails to comply with such an order, an employment tribunal may make an additional award of between 26 and 52 weeks’ pay.

In relation to complaints of unfair dismissal, wrongful dismissal and breach of contract, a tribunal will expect the Claimant to have mitigated their loss. This means reducing the Claimant’s financial loss (ie the steps taken to find alternative employment). This does not necessarily mean the same type of employment. At first, it may be reasonable for the Claimant to look for jobs on a similar salary and in a similar area to their old job. However, as time goes by, the Claimant will be expected to consider work, which may be less well paid, part-time or in a different area to the previous job.

The Claimant must show that they have mitigated their loss and will be expected to provide the employment tribunal with evidence that they have claimed state benefits and kept all paperwork in support of finding new work (eg newspaper adverts, copies of any applications for jobs and rejection letters).

An employment tribunal can reduce awards for unfair dismissal if:

• it considers the Claimant failed to mitigate their loss
• it considers that the Claimant contributed towards the dismissal by their conduct. This reduction can be up to 100%
• it finds the dismissal to procedurally unfair but concludes that if the Respondent had followed a fair procedure the Claimant would have been dismissed in any event

Can an employment tribunal award costs against the losing party?

An employment tribunal can also make an award of costs and expenses against either party and/or its representatives in certain circumstances to a maximum of £20,000 (eg acted unreasonably in pursuing or defending a claim).

IThe material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.