Women in Business Toolkit: Employment Tribunals

THE WOMEN IN BUSINESS TOOLKIT: Taking a Case to Employment Tribunal

THE WOMEN IN BUSINESS TOOLKIT All of the Chapters so the Women in Business Toolkit can be found online on the Women in Business Toolkit section of the Birmingham Chamber of Commerce Website along with an online version of this document.

Click the links below or see www.Birmingham-Chamber.com/WIBToolkit for more information.

Having a family and caring for dependents

Promoting Best Practice Mentoring and Sponsorship

Maternity Leave and Pay

Unconscious Bias Training

Paternity Leave and Pay

Transparency in Pay and Promotions

Adoption Leave and Pay Shared Parental Leave and Pay The Right to Request Flexible Working

Promoting Diversity Through Recruitment Flexible Working

Statutory Parental Leave

Diversity Policies and Strategies

Your Rights in the Workplace

Making the Case

Discrimination, Informal and Formal Grievances and The Equality Act (2010)

Making the Case: How to Construct a Business Case and Useful Statistics

Taking a Case to Employment Tribunal

INTRODUCTION: This handy little guide offers you some concise and, we hope, highly practical and useful information on taking a case to Employment Tribunal.

This guide, brought to you by the Greater Birmingham Chambers of Commerce, is part of the Women in Business Toolkit. This toolkit aims to help inform and empower women and encourage best practice in businesses, helping make the UK a forward thinking, attractive place to work.

Connecting you to opportunity...

Whilst useful and informative, it does not aim to provide encyclopaedic knowledge or in-depth legal advice about the topics in question, merely an introductory account. If you have any questions about any of the topics covered in this document please do speak to your HR department/the member of staff responsible for this area or seek professional advice

The Greater Birmingham Chambers of Commerce features some of the UK’s oldest and largest Chambers. It has nearly 3,000 member companies that employ over 200,000 plus affiliate organisations representing 15,000 people. It offers extensive services to industry and commerce, having served the interests of business for nearly three centuries, promoting trade locally, nationally and internationally.

The upper cost to a claimant (e.g. employee) of getting an employment tribunal hearing for a discrimination case There were...

The average length of time between submitting a case to employment tribunal and getting a final decision.

Claims accepted by employment tribunals between April 2011 and March 2012...

28,800 cases concerning equal pay

4,800 cases concerning race discrimination

3,700 cases related to age discrimination

10,800 cases related to sex discrimination

average award for single discrimination and unfair dismissal claims across all the types of claims

The estimated cost of running the Employment Tribunals and Employment Appeal Tribunals

WHAT ARE EMPLOYMENT TRIBUNALS? Employment Tribunals were first established in the 1960’s. They are independent judicial bodies designed to resolve disputes surrounding employment rights between employers and employees. You can take your employer to an employment tribunal if you think they have broken the law or treated you unfairly.

There are very strict time limits on submitting a case to be heard at employment tribunal. See page 7 for more information.

Some examples of issues that you can take to employment tribunal are: 

Discrimination



Unfair wage deductions



Unfair dismissal



Constructive dismissal

As of July 2013 you will now have to pay a fee to take a case to employment tribunal, although fee reduction schemes are available to those on low incomes. See later in this document for more information.

Remember: Before you consider taking a case to employment tribunal it is best to raise the issue as a grievance with your employer first. Click here or see the Discrimination, Formal and Informal Grievances and the Equality Act (2010) chapter of the Women in Business Toolkit in the Chamber website www.BirminghamChamber.com/WIBToolkit

HOW DO I START AN EMPLOYMENT TRIBUNAL CLAIM? If you’ve tried raising a formal grievance with your employer and are not happy with the result you can look at taking a claim to an employment tribunal.

Step 1: Get legal advice

Before you begin the process of making a claim it is worth getting some legal advice to make sure that the treatment you are complaining about definitely is covered by employment law. In some cases it will be very clear but in many cases it is not always immediately obvious if that line has been crossed.

You may be able to get free advice from The Citizens Advice Bureau (click here or go to www.citzensadvice.org.uk for more details). You may also wish to speak to a specialist solicitor. If you are a member of a Union they may be able to recommend one or offer you further support.

Step 2: Contact Acas

As the 6th May 2014, employees are required to notify Acas of their intent to take a claim to employment tribunal before the claim is officially lodged.

This can be done through Acas’ Early Conciliation service (click here or go to www.acas.org.uk for more details).

Once Acas have received your Early Conciliation notification form, Acas will contact you or your representative within two working days to find out more detail about your claim.

The case will then be passed on to a conciliator who will make contact with both you and your employer to arrange a mediation session. In this session the conciliator will attempt to bring the case to a mutually agreeable conclusion without having to go to employment tribunal.

If you and your employer are unable to reach an agreement you may still wish to take your case to employment tribunal.

Step 3: Submit an ET1 form

Once you have established that you have grounds to make a claim (i.e. that it is likely that your employer did behave illegally) you need to submit an ET1 form. An ET1 form is the official document you will need to submit in order to begin the process of making an employment tribunal claim.

Submitting an ET1 form does not necessarily mean that your claim will be heard by an employment tribunal, but it is the first step in the process. Click here for the online ET1 form or see the Employment Tribunals section of the www.gov.uk website for more information.

In most cases the employment tribunal will need to receive your ET1 form a within three months, less one day, of the day that the incident you are complaining about happened. This means it is not enough to have the form in the post by the deadline, it needs to have arrived with the employment tribunal.

Given the length of time working through a formal grievance in the workplace can take, it is important that you keep and eye on the date and make sure that, if it comes to it, you are able to get your ET1 form in before the deadline.

If the case goes to a hearing your ET1 form will be the first document that the tribunal reads. In it there is a space for you to write a statement about your claim. Take your time over this section, give a clear, concise and objective account of what happened in the order that the events happened in. You don’t need to use legal language, but if you know which law your employer broke (e.g. the Equality Act (2010)) or on what grounds you are making the case (e.g. unfair dismissal) say so.

Please Note: In order to submit an ET1 form you will need to pay an Issue Fee (as of Autumn 2013), with the amount depending on the type of claim you are making. See later in this document for more details on employment tribunal fees and fee relief schemes.

Step 4: Your employer should respond to the claim If your claim has been accepted you will receive notification from the employment tribunal and information about what will happen next. You will also be sent a case number. Remember to quote this case number in all your correspondence about the case. If you don’t receive a notification contact the Employment Tribunal office ASAP to make sure your ET1 form has been received.

Generally speaking, your employer will then be notified about your claim. They will then have a set time limit, usually 28 days, to respond and submit their side of the story. They respond using an ET3 form which you should also receive a copy of. If they do not respond the employment judge overseeing your case may make their decision without going to a hearing. If they do respond, and the Employment Tribunal believes there is a case to be answered, there will be a hearing. You may be asked to meet with the judge to decide the time, date and length of your hearing and discuss any outstanding issues with your case.

If there are any outstanding issues with the case, e.g. uncertainty over whether a claim was submitted in time, you may also be asked to attend a preliminary hearing.

Did you know?: All electronic documents that you send to the Employment Tribunal, or that you want to submit as evidence, must be in a Microsoft Word compatible format

Step 5: Preparing for a hearing Many cases do not make it as far as a formal hearing. Sometimes the Employment Tribunal finds that the issue is not covered by employment law. In other instances the employer and employee find a way to resolve the issue out of court. Sometimes claimants simply decide they no longer want to progress the case.

If you are offered a hearing you will need to do two things:

1)

Pay a hearing fee

2)

Prepare your ‘bundle’

Your ‘bundle’ is the collection of documents that you would like to present as evidence to the Employment Tribunal. If you have hired/ have access to a solicitor they will advise you/prepare this for you. If not you can do it yourself with little trouble. You should start with copies of the ET1 form you submitted and the ET3 form from your employer. You should then include all other relevant documents presented in chronological order beginning with the earliest. Examples of documents you may want to include are:



Emails or written correspondence relating to the issue/your original grievance



Your Discrimination and Other Prohibited Conduct Complaints Questionnaire (click here for more information)



Signed witness statements



The compensation the you would like and why

You will need to prepare multiple copies of this bundle. The Employment Tribunal should specify how many copies you need in their correspondence with you. If it is not clear, ask them.

If you would like to, you can bring witnesses to support your case.

This is particularly important if you think your employer/former employer will challenge any evidence given in written witness statements. Generally it is up to you to make sure your witnesses turn up to the tribunal. However, if you would like someone to come who is unwilling to, you can ask the Employment Tribunal to issue a witness summons and compel a witness to turn up. To do this you will need to tell the Employment Tribunal the witness’ name, address, reasons for wanting the witness to testify and their reasons for not wanting to come to the hearing as far in advance of the hearing as you can.

In the run up to the hearing, it is highly likely that you will be asked to exchange witness evidence with the other side. For you, this will be your account of what happened. As with your ET1 form, it is best to keep this as clear, concise, factual and unemotional as possible.

If you are representing yourself at the Employment Tribunal you may also want to prepare what you are planning to say on the day. This could include: 

Making sure you understand and are clear on what grounds the case is being made (e.g. unfair dismissal, withholding wages, discrimination etc).



Listing any evidence the opposition has put forward that you disagree with (e.g. parts of their witness statement that conflict with yours), why you disagree with it and your evidence for doing so.



Write out the questions you want to ask each witness. Again, it is best to keep these as short, to the point and as clear as possible. Do not be afraid to ask difficult questions if they are relevant to your case; this will be your best, and possibly final, opportunity to get your case across.



Prepare your own statement clearly summarising the facts of your case. You may want to practice delivering it in advance of the hearing.

Step 5: The Hearing

Hearings usually follow a set formula. After arriving at the venue and notifying a member of staff that you are there, a tribunal clerk will come and discuss the case with you. They will ask you for information on your witnesses and copies of your ‘bundle’. If any of your witnesses have special needs or concerns, now will be the time to tell tribunal clerk.

The case will be heard by a tribunal panel made up of an Employment Judge and ‘members’ who provide specialist knowledge.

The order of the day will depend on the type of case you are bringing and the preference of the judge. Overall it will involve you, the other side (i.e. your employer) and your witnesses giving evidence under oath. One side will present their case first and the other second. As it is under oath it is important to have a think before you speak and make sure you stick to the truth of what happened. You will be able to cross examine each others’ witnesses and have the opportunity to provide any additional evidence. The judge may also ask you some questions directly.

The judge will probably be under some pressure to make sure that the tribunal doesn’t overrun. As a result they will make an effort to steer the proceedings, keep it relevant to the case and seek to speed up progress if witnesses are going off topic.

After the evidence has been heard both sides will be invited to sum up their case. After this the tribunal will go and consider the evidence and decide on a verdict. After they have come to a decision, the Judge will usually let you know the outcome of the case there and then. If your claim has succeeded they will also discuss compensation.

Occasionally, Employment Judges can choose to reserve judgement on a case. This is usually used for more complex cases or hearings that have run over the end of the working day. If this happens, you will receive the verdict in writing at a later date.

Step 6: After the Hearing

Whatever the verdict, you will receive a written version of the judgement soon after the hearing concludes. If you ask at the hearing or make a written request within 14 days of the hearing, you can also request a written statement of the reasons for the verdict. If you are thinking of appealing the judgement it is worth doing this.

If the tribunal finds in your favour and you are awarded compensation all being well your employer will follow the ruling and pay up without any hassle. However, if your employer is withholding the compensation you can use various means of getting them live up to their responsibility. The most common is to take the case to your county court using the Employment Tribunal Fast Track Scheme.

This scheme allows you to have a High Court Enforcement Officer (HCEO) assigned to your case as soon as the other side fails to make the payment as directed by the Tribunal. The HCEO will start off enforcement proceedings within the county court on your behalf. For more information on recovering unpaid compensation click here or go to www.hmctsformfinder.justice.gov.uk.

Step 7: Appealing the Judgement

If you think that the Employment Tribunal has made the wrong decision because they have made and error with the law you can apply to the Employment Appeal Tribunal (EAT). This could be because you believe they applied the law inappropriately or (in very rare incidences) came to a conclusion that a reasonable tribunal wouldn’t have. This application is called a notice of appeal.

Your notice of appeal will need to set out all of the specifics of why you are appealing your case. You will also need to pay a fee to lodge and appeal with EAT. See overleaf for more information.

For more information on lodging an appeal please see the Ministry of Justice website www.justice.gov.uk or speak to a legal representative.

Most Employment Appeal Tribunals will only hear cases that are about flaws in the legal reasoning of the original Employment Tribunal (i.e. they wrongly applied the law). As a result, it is recommended that you get legal advice either from a solicitor, charity, union or the Citizens Advice Bureau before beginning an appeal.

Summary of Employment Tribunal Timeline Dispute Arises Try to Resolve It

Claim Not Accepted and Returned 3 days

Send Claim (ET1 Form) to Tribunal Office

Estimated time

Claim Accepted, Sent to the Respondent

Response Accepted (ET3)

No Response Received or Response Not Accepted

28 days

Seek Advice and Contact Acas for Conciliation

Judgement Issued

Case Management (step 4, p.9)

Hearing Held

Written Judgement Issued 30 weeks

4 weeks

26 weeks

Adapted from: http://hmctsformfinder.justice.gov.uk/courtfinder/forms/t422-eng.pdf

EMPLOYMENT TRIBUNAL FEES As of July 2013, you now have to pay a fee to take a case to employment tribunal.

The Ministry for Justice divide employment tribunal claims into two types: Type A Claims which refer to (broadly speaking) claims brought under the Wages Act (1986) (e.g. unfair wage deductions/unpaid wages), refusals to allow time off (e.g. refusal to allow statutory parental leave) or appeals (e.g. appealing against a refusal of a request for flexible working).

Type B Claims which refer to claims made about discrimination (e.g. being discriminated against for one of the protected characteristics listed under the Equality Act (2010)) and unfair dismissal (e.g. being dismissed for joining a trade union).

There is an issue fee (a fee for submitting a case to an employment tribunal, i.e. your ET1 form) and a hearing fee (a fee you will need to pay if your case passes initial review and can be heard in front of the tribunal).

There are separate pay scales depending on whether you are bringing a claim as an individual, or you are part of a group bringing a claim.

The information in this section refers to the costs and fee remissions at they were at the time of writing (November 2013) For individual claimant cases (i.e. if you are making the claim on your own): Fee Type

Type A Claims

Type B Claims

Issue Fee

£160

£250

Hearing Fee

£230

£950

For multiple claimant cases (i.e. if you are making a claim as part of a group):

For Type A Claims

Fee Type

2-10 claimants in group

11-200 claimants in group

Over 200 claimants in group

Issue Fee

£320

£640

£960

Hearing Fee

£460

£920

£1380

For Type B Claims 2-10 claimants in group

11-200 claimants in group

Over 200 claimants in group

Issue Fee

£500

£1000

£1500

Hearing Fee

£1900

£3800

£5700

There are also additional fees in place for other applications:

Application to Mediation by the dismiss following Judiciary settlement

Fee Type

Review Default Judgement

Type A

£100

£60

-

Type B

£100

£60

£600

Fee Type

Counterclaim

Application for Review

Type A

£160

£100

Type B

-

£350

Employment Appeal Tribunal Application (lodgement fee)

Employment Appeal Tribunal Full Hearing

£400

£1,200

Fee

See the jargon buster section later in this document for a brief summary of what these terms mean.

Generally speaking, only the issue and hearing fees apply to most Employment Tribunal cases.

EMPLOYMENT TRIBUNAL FEE REMMISSION SCHEMES If you are on a low income or a qualifying state benefit you are probably eligible for help with paying your Employment Tribunal fees. This support is known as fee remission.

Click here or go to www.gov.uk and search ‘fee remissions’ for the fee remission form and more information.

Benefits If you receive : 

Income Support



Income-related Jobseeker’s Allowance,



Income-related Employment and Support Allowance



Universal Credit



Pension Credit guarantee credit or



working tax credit (unless you also receive Child Tax Credit)

You will probably quality for full fee remission (i.e. you won’t have to pay any fees).

To apply for this full fee remission you will need to get a letter of proof from the Department for Work and Pensions (or HMRC for working tax credit). This letter will need to be dated (i.e. sent from the DWP or HMRC) within one month of your application for fee remission.

Low Income Support If you have a low gross income, you may qualify for full fee remission too.

Gross income is your income pre-tax, national insurance and any other payments that are taken from your pay check (e.g. pension payments). It also includes any additional income you may receive such as rent on properties you own or a pension fund.

Whether you qualify or not is worked out using the income/number of dependants you have, set out in the table below. These figures are based on gross income in the 12 months before your application for fee remission is submitted: Gross Income Number of Children

Single

Couple

0 children

£13,000

£18,000

1 child

£15,930

£20,930

2 children

£18,860

£23,860

3 children

£21,790

£26,790

4 children

£24,720

£29,720

For couples and single parents with over 4 children there is an additional allowance of £2,930 for each additional child.

Please note: you will need to provide a significant amount of evidence to support your application. For proving your income you can submit bank statements, payslips, receipts and (for self employed people) your latest tax return. For proof of children; copies of birth/adoption certificates or other relevant documentation.

Low Disposable Net Income If you do not qualify for a full fee remission you could still qualify for a part fee remission (i.e. reduced costs) if your monthly disposable income falls below a certain amount.

Calculating this can get a bit complicated so do take time over it. To work out your disposable income start by working out your gross income for the month you are making the application in (e.g. wages, rent income, other income). From there you can deduct the amount you have/will pay out in: 

Income Tax



National Insurance



Rent or Mortgage (minus any housing benefit)



Child Maintenance



Childcare Costs



Payments you’re making under court order (e.g. fines)

When making your application you will have to provide evidence of all of these costs and your income so remember to keep receipts, bank statements and pay slips.

You can also deduct fixed amounts for your and (if you have them) your partner’s and or children’s living costs: Fixed Cost

Per Month

Your Living Costs

£315

Your Partner

£159

Each Child

£244

Once you have calculated this you will have your monthly disposable income. If your monthly disposable income is under £50 you will qualify for a full fee remission and you will not have to pay any fees at all. Above £50 the proportion of your fees that you will have to pay increases on a sliding scale: Disposable Monthly Income

Amount in Fees

Less than £50

None.

£50-£250

£2.50 for every £10 of disposable income up to a maximum of £50

£210 and above

£50 plus £5 for every £10 of disposable income over £200

You may also be able to get a fee remission in exceptional circumstances, for instance: 

You’ve suffered uninsured losses as a result of fire, flood, theft or criminal damage



You’ve been threatened with legal action because of unpaid bills



Where paying the fees would result in overdue rent or mortgage payments which could make you homeless

If you experience these or any other financial emergencies speak to the tribunal manager who will make a decision about fee remission on a case by case basis.

What to do if you think you have paid a fee you should have had fee remission for If you have already paid any fees to an Employment Tribunal but you think you qualify for fee remission you can apply for a refund.

To do this you must: 

Make your claim within six months of the fee being paid.



Submit your claim to the tribunal office where you made the payment.



Provide evidence that you made this payment (e.g. a tribunal receipt).



Provide supporting evidence to show why you think you qualify for the remission. Remember: any bank statements, benefit letters and other evidence must be dated from the month that you paid the tribunal fee, not the current month/ month you apply for the refund.

For more information on Employment Tribunal Fees please see: The Ministry of Justice Website: www.justice.gov.uk The Citizens Advice Bureau’s Advice Guide Website: www.adviceguide.org The UK Government’s Website: www.gov.uk

JARGON BUSTER: APPLICATION FOR REVIEW If you, or your employer, strongly disagrees with the Employment Tribunal’s decision you can apply to have the decision reviewed provided you apply within 14 days of the judgement being issued.

BUNDLE The documents relating to your case that the tribunal needs for the hearing.

COUNTERCLAIM In very limited circumstances, employers may be able to lodge counterclaims against the employee taking them to employment tribunal.

This is largely reserved for breach of contract claims, where the employer is counter-arguing that the employee has breached their contract.

CROSS EXAMINATION When a witness at employment tribunal is asked questions by the other side during a hearing.

DEFAULT JUDGEMENT After you submit a case to the Employment Tribunal (ET), they will seek to contact your employer. If they do not give a formal response within a set time limit the ET may issue a default judgement. This allows the judge to make a decision on the case without it having to go to a hearing.

DISCRIMINATION AND OTHER PROHIBITED CONDUCT QUESTIONNAIRE A form that you can use to gain more information from your employer about the incident you have raised a grievance/brought a case about.

This document and your employer’s response/lack of one, can be considered by an Employment Tribunal.

EMPLOYMENT JUDGE The Employment Judge is the member of the judiciary that hears your case and passes judgement on it. In hearings, the Employment Judge will usually be accompanied by a panel of ‘members’, non-judiciary specialists with knowledge of the area in which you are bringing your case.

EMPLOYMENT TRIBUNAL The independent judicial bodies designed to resolve disputes surrounding employment rights between employers and employees.

EMPLOYMENT TRIBUNAL FAST TRACK SCHEME If you are awarded compensation but your employer is refusing to pay it, you can apply to the Fast Track Scheme. Applications cost £60 (recovered from your employer when your compensation is collected) and the scheme involves sending a High Court Enforcement Officer to your employer to demand payment.

ET1 FORM The form you use to bring your claim to the Employment Tribunal. It is a legal document that allows you to set out your case. There are strict time limits on submitting and ET1 form and it will be referred to regularly during your case. Take care when filling it in.

ET3 FORM The form your employer uses to respond to your claim. In it they will set out the parts of your case they disagree with.

FEE REMISSION Schemes whereby part or all of your Employment Tribunal fees may be removed or recovered if you meet certain criteria.

GRIEVANCE Raising a complaint with senior management/relevant staff members in your organisation using official channels. You will need to have raised your complaint as a formal grievance before it can be heard by an Employment Tribunal.

GROSS INCOME your income pre-tax, national insurance and any other payments that are taken from your pay check. It also includes any additional income you may receive such as rent on properties you own or a pension fund.

HIGH COURT ENFORCEMENT OFFICER The person sent by the Employment Tribunal Fast Track Scheme to recover any unpaid compensation from your employer.

MEDIATION BY THE JUDICIARY Mediation by the judiciary (or judicial mediation) is a voluntary alternative to a full hearing. It involves an employment judge acting as a mediator and going between the two parties to attempt to allow them to resolve the dispute before hearing. It is entirely confidential and should the case still progress to hearing no documents or information gathered from the mediation are admissible in court.

REVIEW DEFUALT JUDGEMENT Your employer can apply to have a default judgement reviewed if they apply within 14 days of the judgement being issued. If their application is successful the judge will reconsider their initial judgement and consider allowing the case to go to a hearing.

SCHEDULE OF LOSS A document that helps you work out any earnings lost as a result of the incident that you are taking your employer to Employment Tribunal for.

This may include unpaid wages, compensation for unfair dismissal or injury to feelings.

USEFUL LINKS: The UK Government’s Website: https://www.gov.uk/employment-tribunals https://www.gov.uk/being-taken-to-employment-tribunal-by-employee The two links above will take you to sections of the Gov.uk website outlining how to take your employer to employment tribunal and what to do if you’re a business and an employee takes you to employment tribunal.

The Citizens Advice Bureau Advice Guide Website: http://www.adviceguide.org.uk/england/work_e/ work_problems_at_work_e/ et_employment_tribunals_from_29_july_2013_e.htm This section of the Citizens Advice Bureau Advice Guide website offers up to date advice on Employment Tribunals.

The Equality and Human Rights Commission Website (EHRC): http://www.equalityhumanrights.com/advice-and-guidance/new-equality -act-guidance/taking-a-discrimination-case/ This section of the EHRC website offers an array of advice on taking a discrimination case to Employment Tribunal.

Ministry of Justice: http://www.justice.gov.uk/tribunals/employment Information from the Ministry of Justice on Employment Tribunals including signposting for further information.

SOURCE OF STATISTICS

Ministry of Justice(2013) Employment Tribunal and Employment Appeal Tribunal Fees Stakeholder factsheet

The upper cost to a claimants (e.g. employee) of getting an employment tribunal hearing for a discrimination case There were...

The average length of time between submitting a case to employment tribunal and getting a final decision.

Claims accepted by employment tribunals between April 2011 and March 2012...

28,800 cases concerning equal pay

4,800 cases concerning race discrimination

3,700 cases related to age discrimination

10,800 cases related to sex discrimination

Ministry of Justice (2012) Employment Tribunal Statistics 20l1-2012

average award for single discrimination and unfair dismissal claims Ministry of Justice(2013) Employment Tribunal and Employment Appeal Tribunal Statistics 2011-2012

The estimated cost of running the Employment Tribunals and Employment Appeal Tribunals Ministry of Justice(2013) Employment Tribunal and Employment Appeal Tribunal Fees Stakeholder factsheet

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