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Employment Tribunals hear employment disputes which have not been resolved in the workplace. Their decision is legally binding.
[Updated for 2017 – Tribunal fees were declared unlawful on 26th July 2017. Tribunal Rules changed from 29th July 2013.]
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 In addition, those proceedings that are ‘dismissed’ and don’t get to Tribunal, or are withdrawn on settlement via Acas (with a COT3 form) are also included in the database.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. However, there is an Employment Tribunals service which may be able to help you get the information you want if it is not available on the database. More details are here.
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.
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.
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.
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.
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:
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.
Between 29 th July 2013 to 26 th July 2017 workers and employees had to pay a fee to take a case to Tribunal. Type A claims (unlawful deductions from pay, notice pay, refusal to allow holiday pay and redundancy pay) 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) cost £250 to lodge the claim and a £950 hearing fee.
A fee ‘remission’ system operated for those who cannot afford these fees to ensure that access to justice was not reduced for individuals in receipt of certain benefits or who have a disposable monthly income below a certain level. Certain assets were assessed for remission purposes and this included any redundancy pay or pay in lieu of notice an employee has received from their dismissal.
A claimant could apply for remission of the whole or part of the fee. If a claimant submitted a claim accompanied by an application for remission and the remission application was refused, the Tribunal would notify the claimant that the fee must be paid by a specified date, and the Tribunal would reject the claim if the fee was not paid by that date.
On 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 Tribunal 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 most people who make such a claim are predominantly female (discrimination claims fell by 83% over the same period).
Lord Reed of the Supreme Court 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 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).
You can read about the initial phase of the Tribunal Fee Refund Scheme that was launched on 20th October 2017, here.
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. You can read more details about this topic here.
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.
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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