Employment Tribunal Claim – How Strong is Your Case?


Whether you’re an employer or an employee the
best advice is to seek legal advice at an early stage in any dispute or
workplace situation. This should be done as early as possible to seek advice on
tactics and also to clarify what claims may exist. If you are an employee and you
decide that you need to bring a claim and this follows a dispute at work,
perhaps after you’ve followed the various policies such as a bullying
policy or a harassment at work policy or maybe even a grievance policy, then you
will need to follow a strict time limit in which to enter your claim – usually
this is three months so if you are an employee and the last act that you’re
complaining about or your dismissal was nearly three months ago
then you really must act immediately or you’ll lose the the chance to bring a
claim in the employment tribunal. Sometimes an employee’s workplace
situation becomes untenable or unbearable and they feel the need to
simply leave the employment on a very short timespan,
this is sometimes known as constructive unfair dismissal and will follow an
event such as blowing the whistle or a discriminatory act which they complain
about or maybe they don’t even have time to complain about before walking out and
this would be, for example, on the grounds of race, sex, disability, sexual
orientation, age, or maternity or pregnancy, these are known as
constructive unfair dismissals and they should only be undertaken with legal
advice wherever possible. Before entering a claim in the
employment tribunal it is now obligatory for an employee to enter into a process
known as early conciliation through ACAS. ACAS is an independent body
which can be contacted via an online form or on the telephone and the
purpose of early conciliation is to seek a resolution between the employee and
the employer and the ACAS conciliator will try and do that,
the resolution may be an apology or it may be a settlement sum or some other
form of agreement which the two parties enter into. It is only when the
conciliation period ends that an employee can enter an employment
tribunal claim and they must be able to enter on the claim form a conciliation
certificate number, if a claimant doesn’t enter into early conciliation the claim
will be rejected. Once an employee enters a claim ACAS can continue to
conciliate but the early conciliation period will have ended. At some stage the employee will decide
whether or not they wish to enter a claim, this is done by way of an ET1 a
claim form which is found on the gov website and it can either be done online
or printed off and sent to the tribunal, it’s an easy form which largely consists
of tick boxes but there is a section in which the claimant must enter the
details of what the claim is about and this is done in everyday language
explaining chronologically how and why this claim has occurred. The claim has to
exist in law and so for that reason it is advisable to seek some advice in
relation to whether or not the claim is covered by law. There are strict time limits to bringing
a claim, as I’ve mentioned earlier it is usually three months from the last act
complained of or the date of dismissal, if there’s any doubt about the
limitation date then you should seek advice from a lawyer or from ACAS but
if you miss that three-month deadline the chances are that you will not be
able to bring your claim and you will lose the opportunity to do so. If you are an employee who has been
dismissed you should try and appeal the dismissal internally before bringing a
claim, it’s important to realize however that appealing doesn’t change the date
of your dismissal nor does it extend the time in which you can bring a claim, the
date of the dismissal will remain the same. If you appeal you should make sure
that you still keep an eye on the limitation date for bringing a claim and
for that reason you should not delay putting in a claim pending an appeal. If
you bring a claim you should also remember that that will not change the
dismissal because the dismissal will stand, as will the reason for the
dismissal, the only way of reversing a dismissal, for example, for gross
misconduct will be to go through an internal appeal. Once you’ve had your notice of
acknowledgement from the tribunal and you’re awaiting the case hearing what
you will find is that it is listed usually between three months from the
date of the response going in to nine months and this will depend on the
availability of your witnesses, judicial resource, and how long the case is. The
longer the case generally speaking the longer you’ll
have to wait until it’s heard. The vast majority of claims that are
brought in the employment tribunal are brought for unfair dismissal; only
employees can bring claims for unfair dismissal and usually they will have
served at least two years in their employment. Self-employed contractors and
workers, casual workers or zero-hour workers, can’t bring unfair dismissal
claims. An employee is somebody who works under a contract of employment and
that’s a short form of the legal definition. To bring a claim of unfair
dismissal you will have been dismissed for a reason that’s not a fair reason
and there are only five fair reasons and those are: redundancy, conduct, capability,
illegality or some other substantial reason – if your reason for dismissal is
not one of those reasons then it is likely to have been unfair. It is
essential for an employer to have followed a fair procedure, carried out a
reasonable investigation, and acted reasonably in dismissing that employee and
those are tests that are brought in he employment tribunal. So if a matter gets before an employment
tribunal for a hearing the tribunal will decide on an unfair dismissal, or indeed
any dismissal or a claim that’s brought, for example discrimination where the
employee remains in employment on the basis of fairness. In dismissal cases the
tribunal will take into account whether in all the circumstances the employer
has acted fairly, in these cases the tribunal will even look at the size of
the company and the administrative resources of it when it’s been acting in
a dispute or in a dismissal procedure. The ACAS code of conduct will be
taken into account by the tribunal but it is not a lawful dictate to a tribunal,
it will simply be guidance that will be considered by the tribunal. As I said
before, tribunals will look carefully at how long an employee has
been in service and for unfair dismissal cases an employee must have two years or
more. In dismissal cases where there have been discriminatory reasons, or an
employee has been dismissed for blowing the whistle, there is no service
requirement, an employee can bring a claim after a few hours –
indeed for discrimination even applicants for roles can bring claims in
the employment tribunal, in other words they will not have been an employee at
all. When an employer resists a claim in the employment tribunal it
would be very wary of the fact that an employment tribunal can order
reengagement of an employee, but ultimately an employer doesn’t have to
take an employee back and can pay compensation instead. So I’ve mentioned the fact that claims
can be brought in an employment tribunal by people who aren’t employees so these
can be self-employed contractors or workers who are either casual workers or
zero-hours workers, it amounts to the same thing, and they can bring claims for
detriments under the following regulations: the national minimum wages
regulations, rights under the working time regulations 1996, making of a
protected disclosure which are sometimes known as whistleblowing which is under
the Public Interest Disclosure Act of 1998, and also rights under the part-time
workers – this is the prevention of less favorable treatment regulations 2000.
Whether you are an employee, a worker, or a self-employed contractor you can bring
claims for discrimination under the Equality Act 2010 if your contract is
terminated by an employer, or by an organization, for a discriminatory reason
– or if you’re treated unfairly for a discriminatory reason solicitors need to
be brought in, if possible, or you need to seek advice in some way on tactics and
whether or not your claim is covered by the law. Qualified lawyers are needed to
review the following: contract documentation, looking over claims for
unfair dismissal or discrimination, compromise and severance agreements,
looking at disciplinary procedures, ensuring that redundancy and dismissal
procedures are fair, and any allegations into discrimination on the grounds of a
protected characteristic such as race, sex, disability or age, and sexual
orientation. Thank you for watching this short video about how you can bring an
employment tribunal claim and in terms of employers how you can resist an
employment tribunal claim – in both cases it is important to seek legal advice as
the process has become much more legal than it used to be, if you need more
help or information please do get in touch.

3 Responses

  1. Alex Pol says:

    Let's comment- good video, in it?

  2. Lhatso Diamond says:

    Thnks very useful

  3. Rose Ault says:

    Thank you this is really helpful.

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