Making a claim to an employment tribunal

Khadijah Zaidi; Patrick Brione

Employment rights come from three main sources: legislation, individual employment contracts and common law. Usually, it’s up to employees to take action against employers who breach their employment rights. In Great Britain this is done through the employment tribunal system. Acas (the Advisory, Conciliation and Arbitration Service) is not a part of the tribunal service but plays an important part in this process by providing advice and attempting to resolve disputes before they reach a tribunal.

A separate legal system exists in Northern Ireland, though it is broadly similar to the rest of the UK. This article does not describe the situation in Northern Ireland. Further information on the process there can be found from the Industrial Tribunals and the Fair Employment Tribunal.

MPs can support their constituents by signposting them to the below information and other appropriate sources of legal advice but have no role in the employment tribunal system. The Parliament.UK factsheet Who should I contact with my issue? notes that “MPs cannot interfere in court decisions and are unlikely to be able to help with private disputes” such as between workers and their employer. For help in finding appropriate advice, instead see the Library briefing on Legal advice and help in employment matters.

When can a claim be made to an employment tribunal?

A claim can be made if an employee thinks they have been treated unlawfully at work by their employer, potential employer or trade union. Unlawful treatment can include unfair dismissal, discrimination at work, breach of contract or unauthorised deductions from pay.

There are strict time limits to making a claim, with very few exceptions. These are:

three months for most claims
six months for claims about redundancy pay or equal pay

It is the responsibility of the employee (or claimant) to make sure their claim against their employer (or respondent) is made in time. If the time limit passes, a claimant can still register a claim. An employment tribunal judge will decide whether to accept it.

Employees can contact Acas for advice if the time limit has passed.

What to do before making a claim to an employment tribunal

Employees should take the following key steps before making a claim to an employment tribunal:

Work-based informal or formal grievance procedures
Contact Acas and consider early conciliation

The diagram below is a summary of the employment tribunal process.

A flowchart displaying the employment tribunal process.

Work-based grievance procedures

Employees should try to raise problems directly with employers, either informally or via a formal grievance procedure. Acas has published more information on how grievance procedures should work. If no formal grievance procedure is in place, the employer must as a minimum follow the Acas Code of Practice on disciplinary and grievance procedures.

An employment tribunal will look at whether informal and formal stages were completed. The tribunal will consider genuine reasons for not doing so (such as fear of dealing with the employer in a case of harassment).

Early conciliation

Employees need to tell Acas that they may want to make an employment tribunal claim. Acas will offer them ‘early conciliation’. This aims to help resolve issues before a claim to an employment tribunal. The time limit for a claim is put on hold during early conciliation when an employee initiates this process. The time limit is not put on hold If the request for early conciliation comes from the employer rather than the employee.

A claimant can represent themselves during early conciliation, or someone else can represent them, such as a friend, union official or lawyer.

If agreement is reached during early conciliation, it will be recorded in a settlement form (called a COT3 form). Once agreed, this is legally binding even before it has been signed; and the case cannot then be taken to a tribunal. An Acas early conciliation settlement can be enforced if needed, either with help from Acas or via a High Court Enforcement Officer.

If agreement is not reached, Acas will issue an early conciliation certificate, which gives a minimum of one calendar month for the claimant to make a claim to an employment tribunal.

How to make a claim

The claimant should use the government’s claim form (known as the ‘ET1 form’) to take a case to an employment tribunal. The form should clearly set out what the complaint is about. There are no fees for making a claim, but claimants may incur other costs such as legal fees if they are using a lawyer, or expert witness expenses.

What happens after a claim is made?

The respondent can ask the claimant for more information to help them understand the claim. The respondent must reply within 28 days, but they can ask the employment tribunal for more time, for example if a key witness isn’t available. If the employer doesn’t respond within 28 days (and doesn’t have an extension), the tribunal may decide on the case without a full hearing.

After the employer responds, the employment tribunal will decide whether to hold a full hearing. A preliminary hearing may also be held.

The claimant and the respondent can ask each other to provide documents they need to prepare. This could include for example, a copy of the employment contract, or notes from relevant meetings.

Acas can still provide support to reach an agreement at this stage. After a claim has been made this is called ‘conciliation’ (rather than early conciliation). Conciliation can continue during an employment tribunal.

The tribunal hearing

Employment tribunals are either heard by employment judges sitting alone, or a panel consisting of an employment judge and two non-legal members.

Claimants and respondents should ensure they have prepared beforehand.

A claimant can have a representative, such as a friend or a lawyer, or they can represent themselves. The claimant’s case will usually be presented first, and the respondent will then present their evidence.

Both parties can be asked questions by the judge or panel members and the other party. The tribunal judge or panel then reaches a decision, which will be sent after the hearing and is published on GOV.UK.

After the employment tribunal

If a claimant wins, the tribunal can order the employer to take action, which can include paying compensation, paying some costs, improving working conditions or giving the claimant their job back. The respondent has 42 days to appeal.

If an award of compensation isn’t received, the claimant can ask a court to enforce payment. In England or Wales, a claimant can ask for a High Court enforcement officer (similar to a bailiff) to demand payment. A claimant can also ask the local County Court to send an enforcement officer. In Scotland, a claimant can ask the tribunal office that heard the case to send an ‘extract of the judgement’, which a sheriff officer can use to force payment.

If a claimant loses, they have 14 days to appeal. They must write to the tribunal office stating their reasons for the case to be reconsidered. They can also appeal to the Employment Appeal Tribunal if they think there has been a legal mistake.