Law guide: Employment

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Employment Tribunal

Employment Tribunal

Contents

Where an employee has a claim for unfair dismissal, redundancy payments, discrimination or a range of other employment-related issues, they can bring a claim by lodging a complaint with the appropriate regional office of the Employment Tribunal (or, in Scotland, the Central Office of the Employment Tribunal in Glasgow).

One exception to this is in Northern Ireland where a complaint of discrimination on the grounds of religious belief or political opinion must be lodged at the Fair Employment Tribunal rather than an Employment Tribunal.

Complaints must be made in writing, using the appropriate form and sent to the correct regional office of the Employment Tribunal (or, in Scotland, the Central Office of the Employment Tribunal in Glasgow), within the appropriate time limit. The complaint should be responded to by an employer within the appropriate time limit.

What can an employee claim for and by when?

An employee can bring the following claims by presenting a complaint to the Employment Tribunal:

  • Unfair dismissal
  • Discrimination on the grounds of age, disability (including claims from job applicants), gender reassignment, marriage or civil partnership, pregnancy or maternity, race, sex, sexual orientation, and/or religion or belief, (England, Wales and Scotland) or religious belief or political opinion (Northern Ireland)
  • Equal pay
  • Unlawful deductions from wages
  • Redundancy payments
  • Breach of maternity and paternity rights
  • Failure to provide written reasons for dismissal
  • Victimisation and/or harassment due to asserting statutory rights
  • Certain claims for damages for breach of contract including (subject to a maximum award of £25,000) wrongful dismissal

Time limits in Employment Tribunals

The time limit for presenting a complaint to the Employment Tribunal differs depending on the type of complaint being made.

The consequences to the employee for failing to send their application to the Employment Tribunal within the appropriate time limit can be severe as it could result in their claim being struck out. Although the Employment Tribunal has the power to extend the time limit, it will only do so in exceptional circumstances.

It is therefore important for an employer faced with an Employment Tribunal claim to know the rules regarding time limits as they could raise the point that the employee has failed to make their claim in time as part of their response (defence). The rules are complex and we suggest you obtain legal advice - check this website to see what might be available.

The most common complaints and appropriate time limits are the following:

Unfair dismissal

The complaint must be presented within three months starting with (and including) the effective date of termination (Continuous employment). In the majority of cases this date will correspond to the last day on which the employee worked. For example, an employee dismissed on 2 September must submit a claim on or before 1 December. Otherwise, the claim will most likely be time barred and not allowed to proceed.

Redundancy payments

Claims must generally be made within six months starting with (and including) the effective date of termination, but there are specific time periods involved which are complicated and need be approached on a case-by-case basis.

Discrimination

Any complaints of discrimination must be brought within three months starting with the date the act or acts occurred. For example, an employee discriminated against on 2 September must submit a claim on or before 1 December. Otherwise, the claim will most likely be time barred and not allowed to proceed. The rules for allowing claims in late are, however, less strict for discrimination claims. There are also complex rules regarding continuing acts of discrimination and specific legal advice should be taken in such a situation.

Equal pay

No specific time limit is allocated if an employee is still working for their employer. If the employee has left their employer then the claim should be brought at an Employment Tribunal within six months of the employee leaving employment. This time limit may be extended if the employer has deliberately concealed information regarding rates of pay.

Alternatively, if an equal pay claim is begun at a court (in England and Wales) then an employee will have six years from the date that the employee leaves employment.

There is currently a six-year limitation period (five years in Scotland) regarding claims for arrears of remuneration and/or damages.

Unlawful deductions from wages

Claims must be brought at an Employment Tribunal within three months starting with (and including) the date of the unlawful deduction or within three months starting with the last in a series of deductions. In England, Wales and Scotland, changes have been made to limit the scope of claims for unlawful deductions from wages (which include salary, commission, bonuses and holiday pay). Employees are limited to claiming no more than 2 years of unpaid wages.

Wrongful dismissal

Claims must be brought within three months starting with (and including) the effective date of termination.

Before making a claim

Acas Early Conciliation

Before an employee can begin a tribunal claim in England, Wales or Scotland, the Advisory, Conciliation and Arbitration Service (Acas) must provide 'Early Conciliation'. This is a free dispute resolution service that helps resolve workplace disputes.

An employee who wants to start a claim must first send Acas certain 'prescribed information' about their dispute. They can use a form to do this, which is available from Acas.

Acas will then contact the employee to confirm whether they want to use the scheme to try to resolve the dispute. If so, Acas will have a month to try to resolve it. In the meantime, the time limits for starting an Employment Tribunal claim will be 'frozen'.

If a settlement cannot be reached, Acas will give the employee an Early Conciliation certificate. This certificate will show that Acas believes a settlement will not be possible.

Acas will also provide a certificate if either you or the employee refuses to use Early Conciliation, or if either of you cannot be contacted.

The employee will need the certificate in order to start a claim at an Employment Tribunal.

When to use Early Conciliation

Acas will offer the scheme for most types of claims, such as those involving unfair dismissal, discrimination, redundancy payments, deduction of wages and unpaid holiday pay.

The scheme will not apply to a small number of claims, such as where there is little time left to make a claim, making it impractical. Further, the scheme will not apply if the employee has already referred the dispute to Acas, or if the dispute involves multiple claims.

If you're responding to a potential claim, you can also ask Acas for Early Conciliation. You will need to contact Acas and give details of the employee using a request form from the Acas website.

If you request Early Conciliation, note that the time limit for making a claim will not be frozen and there will be no time limit for it to end.

See the Acas website for more information on the scheme.

The claim

The complaint must be made in writing using the appropriate Employment Tribunal form and should set out the grounds upon which the employer or employee seeks relief and the issues that the Employment Tribunal must consider. There are other specific pieces of information that must also be provided. It is not sufficient for somebody to just state, for example, 'I was unfairly dismissed'. The employee must state why they think the dismissal was unfair.

Should there be an issue that has not been stated clearly, the Employment Tribunal has the power to permit amendments altering the basis of the claim or adding or substituting the respondent, who is the person or persons against whom the complaint is being made.

In deciding whether or not to grant an amendment or not, the Employment Tribunal will have regard to any injustice or hardship on the employer that may be caused as a result of allowing or refusing the amendments.

An employee must have been continuously employed for 2 years before qualifying to make a complaint for unfair dismissal. However, note that in certain circumstances an employee who has been dismissed before obtaining the necessary qualifying period of service may have their termination date extended so that they in fact obtain the requisite qualifying period. See the section (Continuous employment).

An employee who has not obtained the required qualifying period of service may still make a complaint to the Employment Tribunal for unfair dismissal on any of the following grounds:

  • Pregnancy and all reasons relating to maternity
  • Taking time off for parental leave, shared parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants
  • For acting as an employee representative
  • Trade union membership grounds and union recognition
  • Taking time off for jury service
  • For making a protected disclosure (generally known as 'whistleblowing')
  • Because of any of the 6 circumstances relating to health and safety specified in the EC Health & Safety Directive 89/391 (e.g. whistleblowing on health and safety breaches)
  • Rights under the Working Time Regulations and the National Minimum Wage
  • Claiming certain specific statutory rights
  • Exercising rights under part-time or fixed-term employee regulations
  • Because of their political opinions or affiliations

An employee can bring a claim for discrimination on grounds of age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, race, sex, sexual orientation and/or religion or belief (England, Wales and Scotland) or religious belief or political opinion (Northern Ireland) regardless of the amount of time that the employee has been employed.

The response

A response (defence) must be received by the Employment Tribunal within 28 days from the day that the Employment Tribunal sends you a copy of the employee's claim (Form ET 1). You must use form ET 3 when filing your response.

If it is not possible for you to fill in the form in time, you can ask the Employment Tribunal to extend the time limit.

For claims in England, Wales and Scotland, you must ask for the extension in writing before or after the original 28-day time limit. You must also give the employee a copy of the application for an extension. If the employee wishes to oppose it, they must do so within 7 days of receiving it. Either party can request for an employment judge to deal with the application at a hearing.

For claims in Northern Ireland, you must ask for this extension in writing as soon as possible within the 28-day time limit. You must also provide full reasons why you are asking for the extension. The chairman will then decide whether to grant you one.

See the Gov.uk website for more information on handling Employment Tribunal claims.

Employment Tribunal fees

These are fees for making claims at an Employment Tribunal. An employee must now pay an issue fee (payable when starting a claim) and a hearing fee (payable 4-6 weeks before the final hearing).

Fees for claimants

The fee amount will depend on the type of claim:

  • Type A: low value and straightforward claims usually involving money owed after dismissal, such as unpaid wages and redundancy payment issues.
  • Type B: all other, more complex claims, such as unfair dismissal, discrimination and equal pay.

The table below shows the fees payable for type A and type B claims. If there is more than one claimant, the fees can be split between them.

Number of claimantsTypeIssue feeHearing fee

1

A

£160

£230

2-10

A

£320

£460

11-200

A

£640

£920

1

B

£250

£950

2-10

B

£500

£1,950

11-200

B

£1,000

£3,800

Application fees

There are also fees for certain applications as follows:

  • To request mediation: £600*
  • To counter-claim for breach of contract: £160*
  • To dismiss a claim if it has been settled or withdrawn: £60
  • To set aside a default judgment (when the employer has failed to submit a defence in time): £100
  • To review the Employment Tribunal's decision: £100 for Type A claims and £350 for Type B claims

*The employer will pay these fees.

Payment

Employment Tribunals also have the power to order the unsuccessful party to pay for any fees that the winner may have incurred.

Employees who cannot afford to pay the fees (such as those on certain government benefits) can apply so that they do not have to pay.

Fees for the Employment Appeal Tribunal

If any party disagrees with the judgment made in an Employment Tribunal, they can appeal to the Employment Appeal Tribunal (EAT).

There will be an issue fee of £400 and a hearing fee of £1,200 for all EAT appeals.