Employment tribunal

Following these guidelines can help reduce the risk of an employment tribunal, although all situations are different; get specialist legal advice for your own situation.

• make sure you use the right documentation such as employment contracts, job descriptions and policies and procedures in a staff handbook.
• Follow the ACAS Code for disciplinary and grievance procedures and principles of best practice, ensuring you act promptly and consistently
• Be mindful of employment rights, such as rights not to be discriminated against; some forms of discrimination are obvious, but others are less so. Ensure you have an equal opportunities policy
• provide staff with ways to raise concerns early via grievance and whistleblowing policies and procedures
• provide written feedback on staff performance 
• follow your own procedures which should be written down and consistently applied as necessary to all staff
• take action if you receive a complaint, by following due process promptly, and investigating it properly
• be fair and reasonable at all times
• keep a written record, to demonstrate that you have acted properly.

• Stay calm and get specialist legal advice quickly; it’s probably best not to try to ‘go it alone’ without a lawyer, if the case is complex
• Check whether you have any legal expense insurance – you will normally be responsible for your own costs regardless of the outcome
• engage in the ACAS early conciliation process that all employees must follow before submitting a claim.  It aims to help people settle the argument without going to an employment tribunal. Meaningful negotiations can result in matters being settled without the need to go to tribunal (and avoiding the associated time and costs of going to trial)
• you must acknowledge the claim and respond within the deadline which is usually 28 days
• On the form you must complete the mandatory element of the response (the ET3 form), communicate all the facts, refer to everything the employee is claiming and be accurate about anything you write down, to resist the claim
• collect written evidence such as notes form meetings, performance reviews etc.

An employment tribunal is like a court, specifically for handling employment disputes where an employee is bringing a claim against his or her employer. It’s made up of a judge sitting alone or a panel of three people, one of whom will be a judge, who will be legally qualified in employment law; the other two are lay members – that is, not judges or lawyers by profession, although they will have experience in employment issues.  One will be an employee representative, and the other an employer representative. Some cases can be heard just by the judge.  Cases of discrimination must be heard by three judges. Although it’s not a requirement to have a lawyer represent you, most people choose to have legal representation.

For a dismissal from a job to be considered potentially fair it must be on a ground set out under section 98 of the Employment Rights Act:

• redundancy
• performance 
• conduct
• illegality
• “some other substantial reason”.

For the dismissal to be fair it will often need to pass the test of being within the range of reasonable responses of an employer. The employer will need to follow an appropriate fair process to minimise the risks of a claim finding procedural unfairness. 

Sometimes the situation is such that it’s considered to be an automatic unfair dismissal. This would be when it relates to something where the employee is protected by law such as:

• maternity/paternity leave
• parental/adoption leave
• asking to be paid the minimum wage
• pregnancy
• trade union activities
• making a protected disclosure (i.e. whistleblowing).

There is no fee for taking a case to an employment tribunal.  In 2017 the Supreme Court judged that the law at that time, which stated claimants must pay, was unlawful. However, most people choose to get a lawyer to help them and of course this means there are legal fees to pay.  Your insurance or membership of a trade union may cover some of the costs. In general, both sides will pay for their own legal costs, regardless of whether they win or lose.  This helps employees who often have fewer financial resources than employers, to access the employment tribunal system. That said, it’s possible that the tribunal could award costs against a party if their behaviour is deemed by the judge to be, for instance, vexatious or unreasonable.