By Rebecca Harmer, Employment Solicitor, Wright Hassall LLP
Since April 2014 a number of changes to claims issued and defended in employment tribunals have been introduced: potential claimants must refer their claim to ACAS first; fees must be paid; and, in circumstances where the employer’s behaviour is deemed to be malicious or have aggravating features, they may be obliged to pay a financial penalty (anything between £100 and £5000) to the government.
Prior to issuing a claim
Using the grievance procedure correctly: Employees should use their employer’s grievance procedure before referring their claim to ACAS. Incorrect use of the grievance procedure can lead to a 25% reduction in compensation payable or, if the employer is at fault, compensatory uplift of 25%.
ACAS mandatory early conciliation: depending on the claim, claimants must contact ACAS before submitting a claim to a tribunal by completing an Early Conciliation form. ACAS will appoint a Conciliation Officer to encourage both parties to resolve their differences ‘without prejudice’. If this fails, ACAS will issue an EC certificate, confirming that pre-claim conciliation has been tried. An employee can then issue a claim. If the conciliation succeeds, both parties will enter a legally binding agreement, preventing the employee from taking the claim further or lodging a new claim, usually in return for a sum of money.
Starting the claim
Time limits: A claim must be issued within three months and 1 day from the date of dismissal. The clock stops while an EC certificate is issued. If the limitation date is reached before the EC certificate arrives, the deadline is extended by 1 month from the date of receipt.
Issuing the correct forms: Employees must complete form ET1 and a document setting out the fees payable. The ET1 is sent to the employer who must respond on an ET3 form within 28 days. The tribunal can reject either the claim or counterclaim if the correct procedures are not followed. Any claim not accompanied by the correct fee will certainly be rejected. The tribunal will assess whether all or part of the claim lie within its jurisdiction and its likely chance of success.
Fees: Claimants pay fees depending on the type of claim. Type B claims for unfair dismissal (ordinary and automatic), discrimination and whistleblowing attract issue fees of £250; all other claims (Type A) attract an issue fee of £160. Hearing fees are £230 for Type A and £950 for Type B. There is a fee remission structure in place which means some claimants will not need to pay for all of the applicable fees.
Preparation: Both employee and employer must disclose information deemed relevant to the other side, including witness statements and medical reports. Either side can request documentation from the other but can write to the tribunal if they feel that the information being requested is withheld.
Fast track system: The tribunal will list an unfair dismissal case for a one day full hearing within 16 weeks of the date of issue of the claim. Alternatively, a hearing date will be issued once the ET3 has been accepted, or when the tribunal has been given dates that must be avoided.
Publicity: Hearings are mostly open to the public and can be reported in the press.
Witnesses: Witnesses in person lend more weight than witness statements or sworn affidavits.
Decision and costs: a decision is made either at the end of the hearing or in writing. Costs vary but are typically between £6,500 and £8,000. Each party usually pays their own costs unless one party has behaved unreasonably.
Compensation: For wrongful dismissal, an employee can claim damages from their employer for a sum equal to their salary plus benefits accrued during the notice period. Unfair dismissal can attract either a basic award (up to a maximum of £13,920) or a compensatory award (based on loss of earnings up to a maximum of £75,574 or 52 weeks gross salary, depending on which is the lesser). There is no limit on the compensatory award for claims linked to discrimination, whistleblowing or where the employee was carrying out health & safety activities.
Appealing: Either party can appeal to the Employment Appeals Tribunal (EAT) within 42 days if they believe the tribunal has made an error in law. It is worth noting that appeals are only accepted in limited circumstances and fees are payable.
This is a snapshot of the requirements for bringing a claim to tribunal. Recent figures suggest that the number of claims before the EAT has reduced by 81% which many believe is a direct result of introducing tribunal fees. Given the expense of bringing or defending a claim, it is crucial that all parties understand what is required of them and are prepared to follow all procedures and deadlines to the letter. By not doing so, a great deal of time and money can be wasted needlessly.