Employment Tribunals hear employment disputes which haven’t been resolved in the workplace. Their decision is legally binding.
[Updated for 2018 – 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 were 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 In addition, those proceedings that are ‘dismissed’ and don’t get to Tribunal, or are withdrawn on settlement via Acas (with a COT3 form) are also included in the database.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’s 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’s an Employment Tribunals service which may be able to help you get the information you want if it’s not available on the database. More details are here.
You’re 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 two years continuous service before you can claim most types of unfair dismissal – there are some exceptions which don’t need two years service, which you can read here. Compensation is given for any successful claim based on the Employees lost earnings – it doesn’t include payment for injury to feelings. Since 29th July 2013, there’s a cap on the compensatory award for unfair dismissal, which is currently the lower of £83,682 or 52 weeks pay (this increases to £80,541 from 6th April 2018). 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
Although in University of Sunderland v Drossow 2017, the EAT said
that an employer’s pension contributions should be included in a weeks
pay. (This cap will not apply to dismissals for whistle-blowing or for certain health and safety reasons or for selection for redundancy. In addition, there’s 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’ve 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
- Underpayment of the National Minimum Wage. Employees and Workers
- 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’ve suffered less favourable treatment than a permanent employee, dismissal, you’ve failed to receive a written statement confirming it has ended, or a written statement confirming that you’re 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 childbirth. 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’s 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 whopping £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 two years employment (automatically unfair), including where you have been dismissed for complaining or refusing to work in 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 attention if there is no health and safety rep available
- leaving your workplace 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.
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 three months or 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 six 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
- From 29th July 2013 there will be a fee to bring a claim to an ET, however, the Supreme Court declared these fees unlawful on 26th July 2017. You can read details about the previous fee regime and the Supreme Court’s decision at the bottom of this article
- 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’re 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 three 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 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.
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 three 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.
Here we look at the first six 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 the tribunal fees they have had to pay and this new financial penalty.
Details of old Employment Tribunal fees and the decision that they are now unlawful:
Between 29th July 2013 to 26th 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 four 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”.
So what happens now Tribunal Fees have been declared unlawful?
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’s 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.
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.