SWAN CRAIG

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Employment Tribunals

Commencing or defending an Employment Tribunal claim

The Employment Tribunal system is a process for employees to pursue claims against their employer, and in some circumstances, for employers to counter-sue their employees

The service is free unlike the courts where an issue fee and hearing fee are required to be paid by the claimant (the person pursuing the claim).  An employee would typically file a claim for unfair dismissal, constructive dismissal (this is where they resign instead of being dismissed), discrimination and/or wages claims against their employer.  It is not restricted to these claims but they are the large majority.  An employee would be the Claimant and the employer would be the Respondent.

Prior to starting this route, the Claimant needs to use the services of ACAS with a process called Early Conciliation and it is quite common for ACAS to help resolve the complaint between the parties to avoid the need for the formal claim to then be issued.

If Early Conciliation does not resolve the dispute, the employee would need to fill in a claim form and submit their claim.  For further information about this please see our article about completing an ET1.

An employer (again the Respondent) will either receive the claim form (ET1 and any further written particulars of claim) by email or by post from the Employment Tribunal (usually by post).  The Respondent has 28 days to then file their defence, which means completing a response form called an ET3 and they can submit further written grounds of their response (commonly known as a grounds of resistance).  If this date it missed, it can have significant consequences on the Respondent as it could result in either the Employment Tribunal barring the Respondent from taking part in the proceedings, or it could result in a decision being awarded in the Claimant’s favour (a default judgment).

Once the defence is filed, the parties then have to prepare the case for the final hearing; this is called case management.  If the claim is for wages or unfair/constructive dismissal, usually the Employment Tribunal will provide written Orders.  These are tasks both parties have to complete and by set deadlines.  If the claim is for discrimination or whistleblowing, the Employment Tribunal tend to arrange a Preliminary Hearing so the parties can attend the Employment Tribunal (either by telephone, video or in person, each Tribunal region is different).  This is then for the parties and an Employment Judge to ascertain and understand the details of the claim.

Once the case management is complete (which includes preparing and exchange documents of the evidence both parties want to rely on, creating a joint bundle so both side’s documents are merged into one bundle, drafting and exchanging witness statements) then the parties will attend a final hearing where an Employment Judge (and possible a panel subject to the type of claim) will then hear the evidence and make their decision.

Parties do not need to be legally represented with employment tribunal claims but naturally as a legal process, it will hugely help.

For anyone either embarking on an employment tribunal claim or seeking to defend one without legal assistance, be warned that it is a long and stressful process.  For Claimants, it is not something to enter into lightly.  For Respondents, getting in a good defence and evidence is key.  We would recommend that if you are unfortunate to have received a claim against your business, taking legal advice from a solicitor or barrister early is key to help defend it.

Employment Appeal Tribunal

For the party who loses the case, there may be scope to appeal it but there has to have been an error of law made by the Employment Judge.  An appeal would be made to the Employment Appeal Tribunal.  An appeal cannot be made just because a party does not like the decision made by the Employment.

As appeals are purely based on legal arguments (as opposed to more factual arguments) we would say it is imperative to have legal representation for such a claim or defence.  There are strict procedural rules to follow to submit an appeal.

At Swan Craig Solicitors, our team of highly qualified employment solicitors have the experience and legal knowledge to assist individuals and businesses with representation in Employment Tribunal and Employment Appeal Tribunal claims. For professional legal advice and a friendly approach, get in touch with our team of employment law specialists today.

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