Tribunal Rules changed from 29th July 2013 and Tribunal fees were abolished on 26th July 2017 and this article has been updated.

Employment Tribunals hear employment disputes that have not been resolved in the workplace and their decision is legally binding.

[Updated July 2017]

Employees can take a claim to an ET for any of the reasons listed below. Employment Tribunals in Northern Ireland are still called Industrial Tribunals.   Workers and Freelancers have more limited circumstances to make a claim – we detail these below.

Employment Tribunal judgments are rarely made freely available to the public, however The Ministry of Justice launched a new online database in February 2017, which you can access here, meaning that in future, employment tribunal decisions from England, Scotland and Wales will be easily searchable.   In addition, those proceedings that are ‘dismissed’ and don’t get to Tribunal, or are withdrawn on settlement via Acas (with a COT3 form) are also included in the database.  Initially the database only contained about 150 decisions dating back to 2015. However, it is expected that all decisions will be added in the future.

Concerns have been raised about the effect of the new system – employers who have lost or settled claims will find that information is easily available for anyone to see, and database searches could become part of some employers’ and recruiters recruitment and screening processes….. Employers are warned against using the database for this in case they risk claims for compensation because of discrimination, victimisation, whistle-blowing or black-listing.

The higher courts and the Employment Appeal Tribunal usually have details published on the BAILII website.

You are always advised to try to resolve your problem with your Employer before lodging a claim at ET.  Both sides (employer and employee) can have unrealistic expectations of what will happen at an ET – Employees may want a chance to clear their name or force the employer to recognise what has happened to them and Employers may seek vindication or want to send a message to other employees.  Both sides could be disappointed after a lengthy and sometimes distressing process.

That said, you can take your Employer to an Employment Tribunal for any of the following reasons:

  • Unfair dismissal (including constructive dismissal and an Employers failure to provide a written statement for the reasons for dismissal). Employees only. Now you need 2 years continuous service before you can claim most types of unfair dismissal – there are some exceptions which don’t need 2 years service, which you can read here.   Compensation is given for any successful claim based on the Employees lost earnings – it does not include payment for injury to feelings. Since 29th July 2013,  there is a cap on the compensatory award for unfair dismissal, which is currently the lower of £78,962 or 52 weeks pay (this increases to £80,541 from 6th April 2017).  A weeks pay will be based on the claimant’s annual gross salary and will not include pension contributions, benefits in kind or discretionary bonuses.  (This cap will not apply to dismissals for whistle-blowing or for certain health and safety reasons. In addition there is no cap on awards for discrimination).
  • Failure to receive Equal Pay for equal value work.  Employees only.
  • Failure of your Employer to pay Redundancy pay or failure to inform and consult in a redundancy or business transfer situation; and failure to allow time off to look for work during a redundancy situation. Employees only.
  • Breach of Contract – if you have suffered a financial loss and your Employment has ended you may bring a claim to an ET.  In other circumstances the claim must be made at a County or other Civil court.
  • Working Hours – your Employers failure to limit weekly or night working limits or to ensure you get the proper rest breaks.  Employees and Workers only.
  • Failure to provide you with a written statement or a written statement of any subsequent changes to your terms and conditions.  Employees only.
  • Refusal of employment (by an Employer or via an agency) on the grounds of your trade union membership.  Workers and Employees.
  • If as an employee on a Fixed Term Contract you have suffered less favourable treatment and/or dismissal, than a permanent employee, or you have failed to receive a written statement confirming it has ended or a written statement confirming that you are now a permanent employee.  Employees only.
  • If as a part-time employee you have suffered less favourable treatment and/or dismissal than a full-time employee.  Employees and Workers.
  • Failure by your Employer to allow time for Trade Union activities, Jury service or other public duties, or ante-natal care.  Employees only.
  • Suffered detriment and/or dismissal for claiming flexible working or your Employer has breached the flexible working procedures.  Employees only.
  • Suffered detriment and/or dismissal for refusing to work on a Sunday. Employees only.
  • Suffered discrimination due to pregnancy, maternity leave or child birth.  Employees, Workers and Freelancers (in most cases Freelancers are covered but please see our ‘What are my main Employment Rights‘ Guide for more details).
  • Discrimination claims – there is no cap on compensation limits and payments can be made to successful claimants for injury to feelings. Open to Employees, Workers and Freelancers (in most cases Freelancers are covered but please see our ‘What are my main Employment Rights‘ Guide for more details).
  • Those on zero-hours contracts can bring a claim of unfair dismissal if the reason for their dismissal is that they failed to comply with a (now banned) exclusivity clause – no qualifying period is necessary.

There are various discrimination claims that can be made, which are:

  • Disability discrimination. The average award in 2015/16 was £22,000.
  • Sexual orientation discrimination.  The average award in 2015/16 was £20,000.
  • Sex discrimination.  The average award in 2015/16 was £83,000 (but the average was skewed by one wopping £1.7million award. The median was £13,500).
  • Race discrimination.  The average award in 2015/16 was £14,000.
  • Age discrimination.  The average award in 2015/16 was £9,000.
  • Religious discrimination. The average award in 2015/16 was £19,000.

There are also circumstances under Health and Safety Laws where you can make an unfair dismissal claim to an ET without needing 2 years employment (automatically unfair),

  • including where you have been dismissed for complaining or refusing to work in an unsafe working conditions e.g. you were dismissed for ‘taking action’ over a health and safety issue, which includes:
  • carrying out any health and safety activities which you have been asked to do by your employer;
  • performing or proposing to perform any functions as a health and safety official;
  • bringing a reasonable health and safety concern to your employer’s attenion if there is no health and safety rep available;
  • leaving your workpllce because you believe you are in a serious and imminent danger which could not be avoided;
  • taking appropriate steps to protect yourself or other people because you believe they are in serious danger.
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More information about Tribunals

  • You should take advice from ACAS, your Trade Union representative or the Citizens Advice bureau before making a claim as it can be confusing and complicated.
  • You must normally make your claim within 3 months of either your employment ending or of the date the “issue” happened (that is the subject of the claim).  In Redundancy and Equal pay cases the time limit is 6 months (minus one day). However, a 2015 case that went to the Employment Appeal Tribunal in Higgins v Home Office confirmed that where an employee is suffering from very serious mental health issues a delay in starting proceedings may not be fatal to her application.
  • Employment Tribunals guidance from gov.uk is here and you can start the online application process here.
  • From 29th July 2013 there will be a fee to bring a claim to an ET – THIS WAS OVERTURNED on 26th July 2017 by THE UK SUPREME COURT and NO FEES WILL NOW NEED TO BE PAID FROM THIS DATE (and Refunds will be made of all fees previously paid).
  • The details about fees that needed to be paid before 26th July 2017 have been moved to the bottom of this article.
  • The details about the fees being ruled unlawful from 26th July 2017 are also at the bottom of this article, and we look at what may happen next too, as the issue of fees is unlikely to go away!
  • You can now complete a new ET1 claim form online or send the claim in by post or deliver it by hand.  Employment Tribunals guidance from gov.uk is here and you can start the online application process here.
  • If your case is accepted a copy of your claim will be sent to your Employer and also to ACAS.  Your Employer must reply within 28 days.
  • ACAS will involve one of their “conciliation” officers to see if they can help resolve your case without it going to ET.  See details about ‘pre-conciliation’ below.
  • Employment Tribunals can ‘strike out’ a case if they think it is too weak, at a pre-hearing, meaning the case will not proceed.  They can also order you to pay costs if they hear your claim but then think you have behaved ‘unreasonably’ during the case.  From 29th July 2013 pre-hearings and ‘case management discussions’ will be combined and known as ‘preliminary’ hearings, which will ‘sift’ the case and explore the possibility of settlement or alternative dispute resolution to avoid the case going to Tribunal.
  • You are able to withdraw or settle your case at any point during the process.
  • If your case reaches the tribunal the case will usually be heard by a panel of 3 people which will include a qualified Employment Judge.
  • If you disagree with an ET’s decision about your case you can appeal if the Tribunal has made an error in law or if their decision is ‘perverse’ (i.e. a decision was reached that no ‘reasonable’ Tribunal could have made on the evidence in front of it).  There are more fees to pay to appeal the process.
  • The losing party at a Tribunal does not automatically find themselves having to pay the other party’s costs of litigation.  However, the Tribunal has discretion to order costs where a party or their representatives have acted “vexatiously, abusively, disruptively or otherwise unreasonably”.
  • And, if an appeal is successful at Employment Appeal Tribunal the EAT is able to make a costs order against the Respondents, requiring it to the pay the cost of any appeal/hearing fees to the Appellant.

The Employment Tribunal website for England, Wales and Scotland is here, and the Employment Tribunal website for Northern Ireland is here – where full information about the claim process is given.  There are some differences in the procedures that are used in Employment Tribunals in Scotland – see our article here for more details.

In early 2015 it became clear that the administration and funding of employment tribunals in Scotland is going to be devolved to the Scottish Parliament in due course.

From 6th April 2014 claims to a Tribunal must be submitted to Acas before they are lodged with the Tribunal.  This ‘Pre-Claim Conciliation’ service is mandatory.

Complaints to Acas can be made online, by post or telephone.  The complainant only has to tell Acas their name and address and that of the prospective respondent (normally the employer), no details of the complaint have to be given.  Acas will make “reasonable attempts” to contact the claimant and then the respondent (if the claimant agrees).  If Acas cannot make contact with one of the parties it will conclude that settlement is not possible.  The parties to the claim will be offered conciliation for one month in an attempt to resolve the dispute with their Employer (before lodging the claim) with ACAS’s help.  This period can be extended by another 14 days if there is a reasonable prospect of achieving a settlement.  If this is unsuccessful or if one party refuses, the claim can proceed to Tribunal (Acas will issue a ‘conciliation certificate’ to allow the claim to proceed to Tribunal).  If ACAS can’t resolve the matter in this period then their services will remain available right up until the case is heard by an Employment Tribunal.  While the claim is under conciliation this stops the ‘clock’ for claims to be submitted to a Tribunal in time; so the period of 3 months in which a Claimant must usually submit their claim to a Tribunal will be put on hold; and will start again once an Acas certificate is received.  See our Employers Guide to How to Deal with an Acas conciliation contact request.

(July 2017: After fees were ruled unlawful we wait to see what happens to pre-claim conciliation.  We assume it will continue although there may be changes to the process).

Recent Tribunal cases (2015), upheld by the Employment Appeal Tribunal show that Tribunals will not favour employees who do not follow the conciliation procedure.  In Cranwell v Cullen, the EAT said that a tribunal was right to reject a claim where the claimant had not contacted Acas (because she thought conciliation was impossible).  The EAT said that the requirement to follow the conciliation procedure (to get a certificate) was strict, even when conciliation would be impossible.

In Sterling v United Learning Trust, the claimant completed the ET1 form with the wrong early conciliation number, and the EAT rejected the claim saying it was the claimant’s responsibility to make sure the information presented to the ET was correct.

Here we look at the first 6 months of Conciliation with Acas.

From 6th April 2014 fines for Employers are introduced where the Tribunal believes they are in breach of employment rights (from a minimum of £100 to a maximum of £5,000), and they have found in favour of the individual.

  • This can happen in cases where there is a breach of the individuals statutory rights, which has one or more “aggravating features” and is intended to reduce deliberate and repeated breaches of employment law.
  • The financial penalty will be between £100 and £5,000 (it will be 50% of any compensation award made to the individual, capped at £5,000).  The penalty will be reduced by 50% if paid within 21 days.  The penalty is paid directly to the Secretary of State and not to the individual.
  • The tribunal can decide whether to impose a penalty or not and will take into account the employers ability to pay

There is no statutory definition of what an “aggravating feature” is but the explanatory notes to the legislation says an employer is more likely to face a financial penalty when:

  • The action was deliberate or committed with malice;
  • The organisation had a dedicated Human Resources team, or;
  • The employer repeatedly breached the employment rights concerned.

So the potential financial exposure for employers with employment claims will be increased as they risk paying compensation to a successful claimant, being ordered to reimburse the claimant for their tribunal fees they have had to pay and this new financial penalty.

Fee Requirements from 29th July 2013 to 25th July 2017:

  • (Old information).  Type A claims (unlawful deductions from pay, notice pay, refusal to allow holiday pay and redundancy pay) will cost £160 to lodge the claim and £230 for the hearing fee.  Type B Claims (unfair dismissal, equal pay, failure to inform or consult under TUPE, failure to allow compensatory rest under the Working Time Regulations, breach of the right to request time off for training and discrimination) will cost £250 to lodge the claim and a £950 hearing fee.
  • A fee ‘remission’ system operates for those who cannot afford these fees to ensure that access to justice is not reduced for individuals in receipt of certain benefits or who have a disposable monthly income below a certain level.  Certain assets are assessed for remission purposes and this includes any redundancy pay or pay in lieu of notice an employee has received from their dismissal.  A claimant can apply for remission of the whole or part of the fee.
  • If a claimant submits a claim accompanied by an application for remission and the remission application is refused, the Tribunal will notify the claimant that the fee must be paid by a specified date, and the Tribunal will reject the claim if the fee is not paid by that date.
  • From 31st January 2017, claims relating to employees of insolvent companies, where payments are sought from the National Insurance fund, such as redundancy payments, will no longer be required to pay a fee.

On 7th February 2014 the High Court ruled that there was insufficient evidence to suggest the fees were unfair – more details are here – in Mid September 2014 The Lord Chancellor gave the union the green light to launch a judicial review into the lawfulness of employment tribunal fees Unison; but this appeal was dismissed by the Courts in December 2014.  In March 2017, Unison were still challenging the fee system in the Supreme Court and the Supreme Court made their decision on 26th July 2017.

Since the introduction of fees in 2013 it is estimated that the number of single claims fell by 70%! The Government published a delayed review of the fee system in January 2017, which unsurprisingly concluded that there is no evidence that people have actually been prevented from bringing claims. The Government also announced that they would extend the ‘Help with Fees’ scheme, and those with under £3,000 in disposable capital and earning under £1,250 before tax each month will qualify for the scheme.

How and Why Fees were ruled unlawful on 26th July 2017 and what may happen next:

On the 26th July 2017 the UK Supreme Court made the momentous decision that the UK’s employment tribunal fee regime (Fees Order 2013), that had been in place since July 2013, was unlawful and discriminatory (in R (on the application of UNISON) v Lord Chancellor 2017).

Over 4 years, Unison, backed by the Equality and Human Rights Commission, challenged the fees, arguing that with tribunal claims falling by 70% during the period, the fees prevented access to justice. Finally, the Supreme Court agreed and ruled that the current fee regime is unlawful in terms of both domestic and EU law, as the fees were not set at an affordable level and were effectively preventing access to justice and that they imposed unjustified limitations on the ability to enforce EU rights. They were also indirectly discriminatory against women wanting to make a discrimination claim, as such people taking such a claim are predominantly female.

Lord Reed commented that “Employment Tribunal’s are intended to provide a forum for the enforcement of employment rights by employees and workers, including the low paid, those who have recently lost their jobs, and those who are vulnerable to long term unemployment. They are designed to deal with issues which are often of modest financial value, or of no financial value at all, but are nonetheless of social importance”.

The Courts commented further about:

Affordability: While the Government had argued that individuals on low or middle incomes could reduce ‘non-essential’ spending (clothing, personal goods, social spending) to pay their tribunal fees, the Court said the individuals must be able to reasonably afford fees; and that if households could only afford them by not spending on ordinary and reasonable expenditure for long periods of time then this was not affordable and was therefore not lawful.

The greater fall in the number of lower value claims (unpaid wages, unpaid holiday, lower value discrimination claims); here the Court found that the fees made it futile or irrational to bring a claim (e.g. the fee was higher than the claim). The Court found that if it became futile or irrational to bring a claim then this was an issue about access to justice.

Individuals must be able to enforce their rights: if an individual could not afford to make a claim, or if making that claim would be futile or irrational, then this made their employment rights meaningless (as employers need to know that there can be a remedy against them if they fail to meet their employment obligations).

So what happens now?

  • The Justice Department stopped charging fees immediately and changed their website to remove all reference to fees.
  • The decision was an English case but will have an impact on Scotland (although Scotland will be getting the power to manage tribunals soon, and had already said they would remove tribunal fees; they may do something different from England in the future).
  • It is estimated that between £27-32 million in fees had already been paid by individuals, and these fees WILL be repaid to all the individuals involved (the government had previously promised they would repay fees if the system was ever found unlawful). How and when this is going to happen we don’t yet know as it will be complex (especially where a settlement agreement has been negotiated after fees have been paid). Expect guidance from the Ministry of Justice in due course and confusion….!
  • A replacement fee scheme is possible – the judgement found that the existing fee rates and structure were unlawful; it did not find that ANY fee regime would be unlawful. The Government had argued that while fees may have discouraged claims there was no conclusive evidence that they had prevented claims. But the Court said that Tribunal fees did not bear any relation to the value of the claim (unlike court fees for small claims in the Civil Court).. So….. expect Fees Mark 2? And perhaps this time the Government may implement any new fee regime through an Act of Parliament rather than by an Order that can be challenged in Court (which does mean it would need to be debated and approved by Parliament).
  • A big question mark hangs over whether individuals who did not bring claims during the existence of the fee regime (and so who would be generally ‘out of time’ to bring any claim), can now show that the reason they did not bring their claims before was solely because of the fees, and so they should be allowed to bring a claim now. Such claims may succeed if they can show they have evidence that the fee really did prevent them bringing a claim previously (from correspondence with Acas, a laywer etc). …. so Employers needs to be aware of this possibility for individuals/cases they thought were long ‘closed’ and over.
  • It is very likely that there will be a rise in the number of employment tribunal claims immediately! So it is important Employers manage any issues/dismissals/discrimination problems in the proper way, as you now cannot rely on your employee NOT taking you to Tribunal as they cannot afford the fees. The current ET Procedures already have mechanisms in place, to weed out vexatious claims that have little chance of success.
  • Another large question mark, is over the role of Acas and it’s mandatory pre-claim conciliation process. This was introduced on 6th May 2014 and means that all individuals intending to make a tribunal claim need to contact Acas first, with a view to Acas conciliating between the parties and coming to an agreement (settlement etc) to keep the case out of Tribunal. However, currently there is no requirement for either party to ‘engage’ meaningfully in the process. For Employers this means they would know they had a potential claim coming because they are contacted by Acas, and could then make a decision as whether to engage in the ‘conciliation’ process and resolve/settle the issue before it reached Tribunal. But, without fees, individuals may simply ask the process to be concluded immediately to gain their Certificate to proceed to a Tribunal case. The general consensus is that Conciliation will continue, but that perhaps there may be some changes to the process. The Court commented that resolution of cases by settlement or mediation can only work fairly if individuals have the option of proceeding to a tribunal, otherwise the employer will be in a stronger position.

As things become clearer we’ll update this article!

 

If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk  – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.

Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.

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