Employment tribunals: how do they work?

Although it is always best to attempt to resolve disputes with employers internally, the ultimate sanction is making a claim to the Employment Tribunal. The most common claims for working mums tend to be claims for unfair dismissal and sex discrimination arising out of pregnancy and maternity leave. This article considers the practicality of how to make claims to the Employment Tribunal.

The first point to make about the Employment Tribunal is that there is no legal cost involved in making a claim. There is no fee for applying and the general rule is that you cannot be made to pay the costs of your employer even if you lose the case. The down side of the no costs rule however, is that your employer will not pay your legal costs even if you win. However, you should not despair as there are ways of enabling you legal representation. There are certain kinds of cases where it is necessary to write a letter of complaint (known as a grievance letter) before making a claim to the Employment Tribunal. This requirement essentially applies in any case which is not simply about dismissal. For example, if you have suffered sexual harassment at work or suffered discriminatory treatment at work relating to pregnancy then it will be necessary to make a written complaint before making the claim. If the complaint is just about dismissal itself, you are entitled simply to make a claim to the Employment Tribunal, although you should appeal internally if specifically notified of the opportunity to do so.  

Time limit
There is a time limit on making a claim to the Employment Tribunal. The general rule in dismissal cases is that the claim must be made within three months of dismissal. In non-dismissal cases, the general rule is that a letter of complaint must be sent within three months of the action that is complained about and the claim form should be received at the Employment Tribunal within six months of the action that is complained about.
When the claim form is received at the regional office of the Employment Tribunal, it is sent to the employer. The employer is known as the respondent at the Employment Tribunal and the employee is known as the claimant. The respondent has 28 days to reply to the claim on what is known as the Response Form. The Response Form is sent back to the Employment Tribunal and then forwarded to the claimant or the claimant’s representative (if they have one).  The second issue that arises after receiving the Response Form is the question of settlement. A significant proportion of cases are settled before the claim gets to the Employment Tribunal for a hearing. It is difficult and expensive for employers to defend claims at the Employment Tribunal and they will often want to reach a settlement even if they think they can win the case in order to avoid costs and avoid any adverse publicity. All claim forms to the Employment Tribunal are automatically referred to the Advisory Conciliation & Arbitration Service (ACAS) whose job it is to help the parties reach a settlement. The ACAS office will contact the claimant and the respondent, normally by phone, and discuss whether or not a settlement should be reached.  
 
The sensible approach to take to settlement is to work out what you might win if you were to succeed in a claim at the Employment Tribunal. In claims for unfair dismissal, there is a basic award equal to statutory redundancy pay and then compensation for loss of earnings. If the claim also relates to sex discrimination, there can additionally be an award for injury to feelings. In a straightforward case where a pregnant employee has been dismissed for a reason related to their pregnancy, after being employed only for a short time, then loss of earnings might amount to between three and six months pay and an award for injury to feelings might amount to between £3,000 and £5,000. You then have to consider the prospects of winning.  If the claim is worth around £10,000 and there is a 50/50 prospect of success, it would be worth reaching a settlement at around £5,000. Having said this, it might be better to start negotiations with a higher offer so there is space to move down in the course of the inevitable haggling. There are a number of tactics that will be used by solicitors in dealing with negotiations and so claimants who are not represented often find themselves receiving a letter with a final offer of settlement that has to be accepted by a given deadline. The best approach to this is often to ignore the assertion that it is a final offer and ignore the deadline and then make an appropriate counter offer. 
In practice, the Employment Tribunal tend to take a fairly active and interventionist role particularly in the case of unrepresented claimants. They will frequently take over the process of questioning and often interrupt with requests for clarification.  Our experience at Lemon&Co Solicitors, where we have represented many hundreds of claimants over the past few years, is that the biggest disadvantage for unrepresented claimants is in the process of preparation prior to the Employment Tribunal. Many unrepresented claimants are terribly anxious about the Employment Tribunal and will either withdraw their claim before the hearing or settle for unrealistically low sums. A represented claimant will often achieve a much higher level of settlement if they are well prepared for the Employment Tribunal and the employer can see that they are well prepared.