The following is an abstract from http://www.employmenttribunals.gov.uk
Other Links:-
| Making a claim - old rules - guidance | http://www.employmenttribunals.gov.uk/Documents/FormsGuidance/MakingAClaim.pdf |
| Making a claim - new rules - guidance | http://www.employmenttribunals.gov.uk/Documents/FormsGuidance/09_1177_MakingaClaim.pdf |
| Submitting a claim - old rules - form - online | http://www.employmenttribunals.gov.uk/Documents/FormsGuidance/oldforms/ET1_Version_6_8.pdf |
| Submitting a claim - new rules - form - online | http://www.employmenttribunals.gov.uk/Documents/FormsGuidance/newforms/ET1.pdf |
| Employment Tribunals - Annual Reports | http://www.employmenttribunals.gov.uk/Publications/publications.htm |
Making a dispute to the Employment Tribunal after 6th April 2009 – Guidance on which legal provisions will apply
Introduction
The legal framework to resolve employment disputes changed on 6 April 2009, when the Employment Act 2008 came into effect. This Act repealed the Employment Act 2002 (Dispute Resolution) Regulations 2004 and relevant provisions of the Employment Act 2002 (the “pre-6th April 2009 regime”), which laid down mandatory “three-step” processes to be followed in the workplace for disciplinary and dismissal procedures raised by an employer and grievances raised by an employee.
Under the current framework, employment tribunals will consider the procedure that has been followed by the parties in dealing with the disciplinary matter or grievance. The Acas statutory Code of Practice on Disciplinary and Grievance procedures, which also came into effect on 6 April 2009, sets out the principles of what an employer and employee should do to achieve a reasonable standard of behaviour to resolve grievance and disciplinary cases.
Employment tribunals will consider whether a failure to follow the Acas code was
unreasonable, taking into account factors such as the size of the business, and
will have discretion to adjust awards up or down between 0 and 25% in relation
to the level of compliance of either party. The Acas Code is supported by
guidance which does not form part of the Code but has been prepared by Acas to
help employers and employees understand the Code and how to reflect it in their
procedures and behaviour.
These arrangements provide for a system for dispute resolution which is intended to be easy to use, and enables disputes to be resolved earlier, with less lost time, expense and stress for all parties.
How will I know which legal regime will apply to any specific case?
At 6 April 2009 there will have been disputes that had started but which were not yet the subject to an employment tribunal claim, and others where a tribunal claim had been lodged, but the case had not yet been heard by the tribunal. A `trigger’ event will decide whether the pre-6th April 2009 regime or the new arrangements apply to a particular case.
The trigger event is the date when the employer started disciplinary or dismissal action, the first step of which is usually a letter sent by the employer to the employee or a meeting, or if no such step was taken the date when the disciplinary action/dismissal happened.
In relation to grievance procedures, the date of the action about which the employee complained is the trigger event.
When will the new arrangements apply?
The new arrangements apply to any case where the trigger event took place on or after 6th April 2009.
When will the pre-6th April 2009 regime continue to apply?
The pre-6th April 2009 regime will continue to apply to cases where the trigger event occured prior to 6 April 2009. This includes the availability of a three-month extension to the time limit in which a claim must be presented. Any such claims will be assessed throughout the case against the pre-6th April 2009 regime with the formal three-step procedure, adjustments for procedural unfairness in the 10 - 50% range and automatic unfair dismissal for non-compliance with the statutory procedures.
Parties to a dispute where the pre-6th April 2009 regime applies cannot agree to the case being dealt with under the new arrangements; the law determines which regime will apply.
(43KB)Making a claim
Your claim cannot be accepted unless it meets certain conditions. From 6 April 2009 some important amendments have been made to the Employment Tribunal Rules of Procedure which change these conditions. However, as explained on the Forms and Guidance page, the old Rules will continue to apply to many claims until 4 July 2009 and to some equal pay and redundancy claims until 4 October 2009.
Please read the Forms and Guidance page before completing a claim form to find out whether the old Rules or the new Rules apply to your claim.
If the old Rules apply to your claim you should use the old claim form. Unless you tell us the following details about yourself and your claim, your claim form will not be accepted, and the old claim form is designed to enable you to do this:
- your name and address;
- the name and address of the respondent or respondents (the person or organisation against whom you are making a claim);
- the details of your complaint; and
- whether or not you are or were an employee of the respondent.
If you are, or were, an employee of the respondent
You need to tell us whether your claim relates to your dismissal. If you are or were an employee of the respondent and your claim or part of it does not relate to you being dismissed, you must also tell us:
- whether you have raised your complaint in writing with the your employer; and
- whether you have waited 28 days before presenting your claim to a tribunal office.
If you have not raised your complaint in writing with your employer, you must give a valid reason why you did not. You may want to get advice. Further information can be obtained from the Directgov website
If the new Rules apply to your claim you should use the new claim form and you only need to tell us:
- your name and address;
- the name and address of the respondent or respondents (the person or organisation against whom you are making a claim); and
- the details of your complaint;
How soon must I make my claim to an Employment Tribunal?
Most claims to Employment Tribunals must be made within very strict time limits. In most cases the tribunal must receive your claim within three months. In dismissal cases the three month period begins from the date your employment ended: in discrimination cases or complaints relating to non-payment of wages or holiday pay the three month period begins when the matter you are complaining about happened. There are special rules for equal pay and redundancy payment claims.
For example
If it happened on 1 March, the tribunal must receive your claim on or before 31
May.
If it happened on 5 March, the tribunal must receive your claim on or before 4
June.
If your claim is about discrimination or failing to pay you wages or holiday pay or a redundancy payment, or about equal pay, or suffering a detriment in the workplace for a protected reason and the old Rules apply to your claim, in certain circumstances, for example, when you write to your employer within the original time limit raising a grievance, these limits will be extended by three months, meaning that the total time you have to claim is increased to six months.
If we receive your claim outside the time limit, the tribunal will only be able to consider it in fairly restricted circumstances which relate to your reasons for not bringing the claim in time. There is no general discretion to extend time.
If the old Rules apply to your claim and you send your claim form to us before the dismissal or grievance procedures are completed, the tribunal may reduce any compensation awarded to you if it believes that the failure to complete the procedures was your fault.
In general to claim unfair dismissal you must have worked continuously for the respondent for not less than one year. However, in certain cases relating to unfair dismissal it may not be necessary to have worked for the respondent for one year, for example if the reason for your dismissal was one of the following:
- Being involved with a union.
- Joining a union or choosing not to join one.
- Being involved in Health and safety activities either as an employer's health and safety "officer" or a worker's representative or for raising health and safety issues, or for refusing to work in circumstances of danger.
- Taking part in activities as a pension scheme trustee.
- Being, or proposing to become, an "employee representative".
- Being a shop worker or a betting worker who refuses to work on a Sunday.
- Using certain rights covered by the Working Time Regulations.
- Being dismissed for pregnancy/pregnancy related reason.
Acceptable claims
If your claim is accepted, the Tribunal office will send you a letter to confirm this together with a booklet which will tell you what the next steps are. At the same time we will send the respondent a copy of your claim form together with a form for their response.
If no response is received within 28 days, the Tribunal may consider issuing a default judgment. A default judgment allows a Tribunal chairman to give a decision about the claim without the claimant having to go to a hearing.
Having received and accepted the claim, we will give it a case number. You should quote your case number if you contact a tribunal office either by phone or in writing.
In most cases, we also send a copy of your claim to ACAS. This is the independent conciliation service. They will try to help you and the respondent reach an agreed settlement if that is what you both wish to do.
Unacceptable claims
Your claim will not be accepted if:
- It is not on an approved form;
- You have not given all the required information; or
- If it applies to your claim, you have not raised your complaint with the respondent and waited 28 days.
We will return your form to you with a letter telling you the reason why your claim has not been accepted and what action you should take.
Before making or responding to a claim
Before you make a claim it is very important that you read the Forms and Guidance page
You can get more help and advice from:
- Advisory, Conciliation and Arbitration Service (ACAS) on 08457 474747;
- A trade union, if you are a member;
- Free advice services such as a law centre or a citizens advice bureau;
- Solicitors and other professional advisers. (Solicitors' firms and advice agencies paid for by the Community Legal Service on 0845 345 4345 or, in Scotland, under the legal aid scheme, may be able to help you prepare your case.);
- You can contact solicitors or other professional advisers. You may be able to get Legal Aid in Scotland.
If your claim involves discrimination, the Equality and Human Rights Commission may be able to help.
Using the downloadable PDF forms
To be able to use the downloadable Employment Tribunals forms you must have the latest version of Adobe Reader installed on your computer.
Be sure to check the following settings before using the Employment Tribunals form
- Go to Select > Edit > Preferences > Javascript
- Make sure the top box 'Enable Acrobat Javascript' is ticked
- Make sure the next 2 boxes are NOT ticked
- Ensure the bottom box is ticked and report any problems you encounter
- Ignore the warning on the 'I agree' page.
Once you have downloaded the form onto your computer please use the blue tabs on the first page of the form to
- Save a partially completed or a fully completed form;
- Email the form to another person who will be able to make amendments to it and email it back to you; or
- Print a copy of the form.
Where to send your claim
Downloadable PDF form
If you have completed the downloadable PDF version of the claim form, when you click the submit button on the form it will be sent to the relevant tribunal office via this website. There is no need to send a copy of your form by post.
By post
If you wish to post your claim, use the postcode for the place where you normally worked to identify the correct tribunal office address you use. If you have never worked for the respondent, identify the correct tribunal office postal address by using the postcode for the place where the matter which you are complaining about happened. Use the hearing centre finder to find the correct tribunal office.
In Scotland, all claims are initially processed by the Glasgow tribunal office and you should send your claim to that office. However, you may take your claim to the Aberdeen, Dundee or Edinburgh office if that is more convenient and they will forward it for you. All tribunal office addresses are available on the hearing centres webpage.
In England and Wales, you can find the details of the nearest Employment Tribunal office to a particular postcode by entering the postcode in the hearing centre finder.
Sending your claim to the wrong office may cause a delay. If you are not sure which tribunal office to send your form to, or you do not know the postcode for the place where you worked, call our Public Enquiry Line 0845 795 9775.
It is your responsibility to ensure that the tribunal office receives your claim within the relevant time limit.
To find the details of the nearest Employment Tribunal Office to a particular postcode, enter the postcode below and click 'Find Office'.
New Claimants in Northern Ireland should apply to the Industrial Tribunals and Fair Employment Tribunal, Northern Ireland.
If you don't know the postcode, you can view a complete A-Z list of all of Employment Tribunal Offices.
What happens after I have made a claim
This information is relevant for both claimants and respondents.
Once the claim and response have been received, there may be some issues which need to be dealt with before the claim can be decided.
For example, you may require further information from the other party. The Tribunal may give directions or orders on this and other matters relating to your case, which you must follow. If witnesses are vital to the case but will not come to the hearing freely, you can ask for a witness order to make them attend.
If you decide that you need more information or documents from the other party, you should ask for this in writing, giving a reasonable time limit for responding. If they do not provide the information you have asked for, you should write to the tribunal as soon as possible enclosing a copy of your written request and ask the tribunal to issue an order.
The tribunal can also decide that more information is needed from either party to clear up a particular matter.
In some cases, the tribunal may hold a case-management discussion to deal with these matters. This will be held by an Employment Judge on his or her own and you and the other party will be invited to take part. It may be held over the phone or in person. If you do not carry out or comply with any order made by the tribunal your claim or response may be struck out, or you may be ordered to pay all or some of the other party's costs.
1. Will my case be heard on the date given?
We will try to deal with your case as quickly as possible but delays can happen.
For example, the case before yours could take longer than planned. Employment Tribunals are paid for by the taxpayer. As a result we aim to deal with as many cases as possible during each day. This may mean some cases are 'unallocated' and will be heard as soon as there is a tribunal available. If it becomes clear that a tribunal cannot hear your case that day, we will tell you as soon as possible.
2. Can I ask for the hearing to be postponed?
If you have a good reason for requesting that your hearing be postponed, you must make your request in writing by post or email, as soon as possible giving full reasons for your request. You should also send a copy of your request to the other side so that they are aware of it.
An Employment Judge will decide whether it is in the interests of justice to grant a postponement and they may want the views of the other side before reaching a decision. You should not assume that your request has been granted unless we have confirmed this to you.
If you or the other party (or somebody else acting for you or the other party) fails to appear at a hearing, the tribunal may decide the case in your, or their, absence.
3. Can I withdraw my claim?
You may withdraw either all or part of your claim at any time before or during the hearing. If you want to withdraw your claim, you must do so in writing to us. You should also tell the respondent that you are withdrawing your claim. You must do this as soon as possible.
4. What if the case settles?
If your case settles before the Tribunal hearing, you should let us know immediately. If your case is settled using ACAS, the conciliation officer will let us know.
If you are the claimant and you decide to withdraw your claim, you must do so in writing. You must also tell the respondent that you are withdrawing your claim. You must do this as soon as possible.
Your hearing
In this section you will find out how you can prepare for your hearing, what will happen at your hearing and what happens afterwards.
What are the different types of Employment Tribunal hearings?
Case management discussions
These are held to:
- clarify the issues in the case;
- decide what orders should be made about matters such as documents and witnesses; and
- decide the time and length of the full hearing.
This type of hearing will normally be held in private, before an Employment Judge sitting alone, or over the phone.
Pre-hearing review
These are held to:
- decide whether the claim or response should be struck out;
- decide questions of entitlement to bring or defend a claim;
- decide, if either side's case appears weak, whether a deposit needs to be paid and, if so, how much, before that side can go ahead.
The letter giving you the date of the hearing will state the matters to be decided at the pre-hearing review. Unless the pre-hearing review is only to consider whether a deposit should be paid, it may well be necessary for evidence to be given at such a hearing. You will need to decide which witnesses (if any) and evidence to bring, bearing in mind the specific matters which the Tribunal will be considering at this stage.
This type of hearing is normally held in public before an Employment Judge sitting alone, but may also be held over the phone.
The final hearing
This is the hearing that:
- decides whether the claim succeeds or fails and, if it succeeds,
- what remedy is appropriate.
This type of hearing will normally be conducted by a full Tribunal which includes an Employment Judge and two non–legal members.
Can I have representation at my hearing?
Yes, you can have representation. Even if you have represented yourself or your own organisation up to the date of the hearing, it may be possible to arrange representation at the hearing itself.
What do I need to do to prepare for my hearing?
Please make sure that you arrive at your hearing centre no later than 30 minutes before your hearing is due to start, making allowances for possible travel delays.
It can be useful to watch a hearing at a Tribunal so you can understand the procedure and see what happens. You can do this by contacting any Tribunal office and ask if there is a suitable hearing for you to observe.
What documents will I need to take to the hearing?
You may have been ordered by the Tribunal to disclose your documents to the other party. But even if you have not you must make sure that the other party has reasonable notice, (at least seven days) of any documents which you plan to use at the hearing to support your case.
Can I bring witnesses to the hearing?
You can bring witnesses to the hearing to give relevant evidence. Even if you have not been told to, it is helpful if you let the tribunal know beforehand how many witnesses you plan to bring. You may have been ordered by the tribunal to produce a written statement of your own evidence and for your witnesses. But even if you have not you may wish to consider doing so. However, in Scotland you should not do so unless ordered by the tribunal.
If you believe that a witness may have something of value to contribute to the evidence they should attend the hearing, rather than relying just on the contents of signed statements. This is especially important if you believe that the other side would challenge what the witness has to say. It is your responsibility to make sure that your witnesses come to the hearing.
You may ask the tribunal to issue a witness order which will summon someone that you want to have at the hearing, even if they do not want to be there. You must apply in writing well before the hearing.
If you do so you will need to tell the tribunal:
- the name and address of the witness;
- what the witness will say and how it will help your case; and
- why the witness is not willing to come to the hearing voluntarily.
What do I need to do about compensation and remedy?
If you are the claimant
You will need to produce evidence of what you want. If you do not provide this information, you may not only recover less than you might otherwise be entitled to, but, if a further hearing is needed as a result of your failure, an order for costs could be made against you.
If you are the respondent
You should produce any evidence and submissions which relate to what the claimant is looking for if their claim is successful.
If the claimant succeeds in a complaint of unfair dismissal (or failing to allow a woman to return to work after pregnancy) the tribunal may consider ordering reinstatement or re-engagement. As a result you should be prepared to give evidence at the hearing as to:
- the availability of the job which the claimant held or of similar jobs;
- whether you would take the claimant back either in the old job or in a similar one; and
- your reasons if you say it would not be practical or possible to reinstate the claimant.
You should also be prepared to give evidence at the hearing as to what you would consider to be appropriate compensation and how you arrive at your assessment.
If the claimant was a member of a pension scheme, you must bring to the tribunal the following information:
- Whether the scheme was a money-purchase or a final salary scheme.
- If it was a final-salary scheme, what is the value of the deferred pension.
- The retirement age under the scheme.
- The amount of the employers' contribution to the scheme.
If you do not give the tribunal the information we ask for, a further hearing may be needed which could cause an order for costs to be made against you.
What will happen at my hearing?
When you arrive at the tribunal you should report to reception. Before the hearing a tribunal clerk will discuss with you the number of witnesses you have and collect any documents you may have brought for the tribunal. The letter we send you will tell you how many copies to bring. You should tell the clerk if you or any of your witnesses have any special needs or concerns.
The Employment Judge will make sure that you take the steps described below in a calm and measured way. However, he or she may have to be firm in moving the case on to make sure that it proceeds at a pace which allows it to be dealt with within the time set aside.
Generally in an unfair dismissal case the respondent will give evidence and call any witnesses first, while in a discrimination case the claimant will normally be first to give evidence followed by any witnesses. However, there is no absolute rule as to which side starts and this will be discussed with you before the hearing begins.
You and your witnesses will have to give evidence on oath or affirmation. If you lie after swearing an oath or affirmation you could be convicted of perjury. In England and Wales you may give evidence by reading a prepared written statement if you want. You or your witnesses can then be asked questions by the other side (this is called 'cross-examination'). You or your witnesses can then give further evidence to clarify matters which came up when being asked questions by the other side 're-examination'). Finally, the Employment Judge and members may ask some questions.
The same procedure is then usually followed for the other witnesses and then with the claimant. Once all the evidence has been heard, both sides can sum up before the tribunal retires to consider their judgment. Unless the tribunal 'reserves' its judgment, the Employment Judge will announce the judgment at the end of the hearing. If the judgment is reserved you will receive it in writing at a later date. This may happen in complicated cases or if there is not enough time on the day of the hearing to come to and announce the judgment.
If the claim succeeds the tribunal will normally expect to deal with compensation issues at the hearing. The time set aside for the hearing will usually include time for this.
Will I receive a written judgment?
We will always send a written judgment to you or to your representative. Written reasons for the judgment will also be given if you ask for them at the hearing or make a written request within 14 days of the date that the judgment was sent to you.
Will I be expected to pay to go to Tribunal?
In most Employment Tribunal cases, each side will pay their own costs. However, in certain circumstances, the tribunal may order one side to pay costs to the other. Those circumstances can include if one side has behaved unreasonably in the way they have carried out the case or if a tribunal thinks that a claim was so weak that it should not have been brought.
Can I claim expenses?
You, your witnesses and volunteer representatives (for example, unpaid representatives from a citizens advice bureau) may be entitled to travelling costs and other allowances when going to a tribunal hearing. You can download a copy of the guidance leaflet 'Expenses and allowances payable to parties and witnesses attending an Employment Tribunal', to see what you are entitled to. You can also get this from the Public Enquiry Line 0845 795 9775 or any tribunal office. We will not pay legal costs.
Costs are known as expenses in Scotland.