UK employment tribunals deal with claims that may be brought against employers by employees relating to their employment or its termination. In Northern Ireland they are called industrial tribunals.

Examples of the types of dispute heard by employment tribunals:

• Unfair dismissal.
• Wrongful dismissal.
• Discrimination (race, sex, disability, religion or belief; sexual orientation, age, maternity or paternity leave/pay).
• Equal pay.

Examples of employment disputes heard by the civil courts:

• Accidents at work.
• Restrictive covenants.
• Contract claims for non-payment of wages.

In Northern Ireland, there’s a separate tribunal, the 'Fair Employment Tribunal', which deals with religious and political belief claims – see Useful contacts for more information.

An Employment Judge usually decides tribunal claims. The judge will sit alone or as part of a panel which includes lay members depending upon the complexity of the claim.

Before starting a claim, there are various pre-claim steps for employees (known as 'claimants') to follow:

• Checking the time limits for bringing a claim

• Participating in the employer’s own dispute resolution procedures, such as a grievance.

• Checking the Acas Code of Practice on discipline and grievance and procedures has been followed. (Both the employee and the employer are responsible for keeping to this code.)

• Ensuring there has been an appeal following the employer’s own procedures.

• Contacting Acas for voluntary ‘early conciliation’ to see if there’s potential to resolve the dispute. 

• Getting a ‘conciliation certificate’ which shows that the Acas help did not enable the parties to agree a settlement.

After these steps, if the employee wishes to pursue a claim, they can complete a claim form (Form ET1) and submit it to the employment tribunal.

Upon receipt of the claim form, the tribunal sends a copy to Acas and the employer (known as the 'respondent'), together with a form for the employer to complete in response (Form ET3).

The respondent has 28 days to complete and return the form to the tribunal. In their response, the employer sets out the main points of its argument. 

The next stages may include a preliminary hearing to explore the matter further or listing the case for the final full hearing. The tribunal offices send out instructions setting out the case preparation steps to make sure things happen properly and punctually - this is known as giving ‘directions’. 

As a result of the COVID-19 pandemic, the parties need to co-operate with running cases. Changes may include providing electronic bundles of documents, shortening the issues in a case by agreement to make the hearing time shorter, or considering alternatives such as judicial mediation which can also be done by video link or by telephone. As cases can take much longer to be allocated hearing dates employers should retain relevant documents and take witness statements at an early stage in case memories fade before the delayed hearing. Judicial mediation may involve less preparation than a tribunal.

Time limits

The time limit for bringing many tribunal claims is within three months of the date of termination of employment.

For some claims, for example discrimination, the time limit may be within three months of the act complained about. Other claims, such as for a redundancy payment, have a six-month time limit.

An additional one month is allowed for Acas conciliation (plus a further 14 days in some circumstances). The conciliation period temporarily stops the normal three- or six-month clock for lodging a tribunal claim until conciliation has ended.

Claims that are not settled or withdrawn come before the tribunal for a formal hearing.

Types of hearing

There are two main types of hearing:

• Preliminary hearing: a short hearing to address any issues so that the case can proceed smoothly before a full hearing. 

• Full hearing: when all the evidence is heard.

Preparation

To prepare for a full hearing, both parties will need to:

• Exchange lists of all documents relevant to the claim, such as contracts of employment, letters, emails, notes of meetings and any other paper or computer generated records. The documents will need to be agreed by both sides, and will be presented in one ‘bundle’ for the hearing. It’s usual for the respondent to put the bundle together. 

• Prepare witness statements from all witnesses who will give evidence at the hearing. 

The hearing

All parties and witnesses must attend the tribunal on time whether this takes place in person or remotely.

At the hearing, the Employment Judge usually sets out the key issues and checks whether there are any preliminary matters. In most cases, the witness statements have already been lodged and are ’taken as read’. Each witness takes an oath before reading their statement or being asked questions by the ‘other side’ and then by their ‘own side’. The judge may also ask questions.

Once all witnesses for one party have given evidence, then the other side’s witnesses have their turn. At the end, the representatives of both sides will ‘sum up’ their case, and the tribunal will adjourn or, in some cases, give its decision immediately.

Outcomes

If the tribunal reaches a decision in favour of the claimant, depending on the type of claim, the tribunal can award:

• Reinstatement (the employee gets their job back).
• Re-engagement (the employee returns to the organisation in a new role).
• Compensation.
• Payment of wages or monies due to the employee.

Reinstatement and re-engagement are rare.

An employer and employee may wish to settle an employment dispute without going through a full hearing either:

• Between themselves directly
• By using the conciliation service offered by Acas, or
• By using an internal or external mediator - read our factsheet on workplace mediation.

Settlement will lead to an agreement 'compromising' the claim through:

• A settlement agreement (previously called a ‘compromise agreement’), or
• An agreement achieved through Acas conciliation (a 'COT3').

We encourage the use of alternative dispute resolution, particularly mediation, as a means of resolving disputes at an early, informal stage. Even aggrieved ex-employees may prefer settling a dispute directly compared with waiting a very long time for a hearing.

Settlement agreements

Settlement agreements can be a helpful means of resolving a dispute or ending the employment relationship, if used appropriately. They have the following key features:

• They can only settle the particular complaint or claims that have been raised in that case, for example unfair dismissal.
• They must be in writing.
• The employee must have independent advice on the contents of the agreement from a solicitor or qualified independent adviser with appropriate insurance cover.
• The adviser must certify in writing that advice has been taken by the employee.
• Appropriate compensation must be negotiated with the employee.

Most settlement agreements have confidentiality provisions. Acas has issued a statutory Code of Practice and revised guidance stating that confidentiality clauses should only be used when necessary and should not be included in settlement agreements as a matter of course.

Where there is alleged harassment or discrimination, HR must ensure that the confidentiality clauses in settlement agreements are used ethically and appropriately. Employees should be made fully aware of the legal status of such an agreement, including their inability to bring a future tribunal claim. They should not be used to cover up cases of alleged discrimination, harassment or bullying. Such clauses should also not be used to deter anyone from reporting misconduct such as making a protected disclosure under whistleblowing legislation.

Acas and COT3 agreements

As previously stated, Acas must conciliate in most claims brought in employment tribunals. The main advantages of the COT3 form of settlement drawn up by Acas are:

• It's free of charge.
• It can easily settle all claims between the parties, including ruling out future claims.
• Legal advice is not compulsory.

Contacts

Acas

GOV.UK - Employment Tribunal

GOV.UK - Being taken to an employment tribunal

Industrial Tribunals and the Fair Employment Tribunal (Northern Ireland)

Judicial Appointments Commission - The Commission is responsible for recruitment of lay members to employment tribunals. Their advice to CIPD members who are interested in applying to act as a lay member is to keep an eye on their website.

Books and reports

BARNETT, D. (2019) Employment tribunal time limits. (Employment Law Library 4). London: Nielsen.

Journal articles

BROWN, L. (2021) Covid-related tribunal claims are on the rise – here’s how to avoid them. People Management (online). 15 January.

CIPD members can use our online journals to find articles from over 300 journal titles relevant to HR.

Members and People Management subscribers can see articles on the People Management website.