Employment tribunal procedure updated 2023: lessons from a long career - Part 1

Initial advice for employees considering employment tribunal (ET) proceedings

Before even thinking about starting tribunal proceedings, seriously consider the following:

• Have you considered an ideal solution to your issue and options as to how this can be achieved. In reality, the main solution can only be to receive financial compensation, either through a settlement or an order from the ET.

Possible option 1: do nothing and forget about it.

Possible option 2: start legal proceedings. This involves the first step of identifying possible claims from a legal point of view.

If the solution of obtaining compensation is achievable, this should form the basis for the tactics and overall strategy of all future actions.

• Have all procedures in the workplace been followed, for example lodging grievances and appeals.
• Have you been employed for at least two consecutive years (this does not apply in discrimination and some other cases, including, in general terms, breach of contract and automatically unfair dismissal).
• Were you an employee, a worker or self-employed. This is a tricky legal matter. The differences between these types of work status have been considered by courts and tribunals in a number of cases. The extent of legal protections depends very much on which legal status of work applies.
• If you were dismissed, is it less than 3 months since the date of dismissal. What was the effective date of dismissal (EDT). Did you receive written reasons for dismissal.
• Have you found new employment.
• If you were dismissed for redundancy, was it a genuine or a sham redundancy. For example, was there proper consultation.
• If you resigned, did you send a resignation letter and did it clearly set out the reasons for resignation. Was there a last straw which made it impossible for you to continue in employment. Were there fundamental breaches of the contract of employment.
• If the potential claim relates to disability discrimination, do you have all relevant medical evidence.
• Do you have legal expenses insurance. This is normally an add-on to house insurance. This can work well if you have it. The premium is normally low. It won’t apply to issues which arose before the insurance was taken out.

The insurer will normally insist on the case being handled by their own panel of lawyers. However, if you want your own chosen lawyer to act for you, the current legal position is that you have the right to choose your own lawyer, and you can insist on this. Insurers will normally eventually agree to the lawyer of your choice.

The insurer will also require evidence that the claim has a reasonable chance of success (normally at least 51per cent) and this must be confirmed by a lawyer. The chance of a successful claim is very difficult to assess. Different lawyers may have very different views on the chances. Assessing a claim as on the one hand hopeless, or on the other hand very good, may be as accurate a forecast as can be given.

If the insurer agrees to cover the cost of the case, it will issue detailed requirements to be complied with as the case develops. These include keeping the insurer fully informed of any significant developments and submitting a monthly report. It is crucially important to comply with these requirements and to make full disclosure of developments, otherwise the insurance cover may be voided. Insurance contracts are contracts which require absolutely full disclosure.

Insurers have the right to withdraw cover if a claimant fails to accept a reasonable offer of settlement. The insurer decides what is reasonable.

• Be aware that legal aid is not available.
• Are you a member of a trade union and is the union willing to back you.
• Can you afford lawyers or are you prepared to do it yourself (litigant in person).
• Be aware that litigants in person may feel confident about starting tribunal proceedings but then become lost in procedural issues and have to instruct expensive lawyers. In my experience, this is not unusual. My own view is that legal advice and representation should not be a matter of charity but should be provided free of charge by properly funded organisations staffed by salaried workers. This may not be realistic in the foreseeable future.
• Be aware that employment law and procedure is a difficult and complex area. Discrimination law, in particular, can be virtually impenetrable for lawyers, let alone litigants in person.
• It is increasingly difficult for full-time employment lawyers to keep abreast of the flow of statutes, regulations, cases and European materials. This volume of legal developments makes it almost impossible for non-lawyers, without access to source materials, to keep abreast of changes which may have crucial implications for their claims. Even the most articulate and well-informed claimant faces great difficulty in finding out exactly what the current law says.
• If you are complaining of discrimination, you should have kept a detailed record of all allegedly discriminatory conduct including dates of such conduct.
• Be prepared for a long, hard fight. Prepare and organise all relevant documents, IT equipment etc.
• Be aware that there is no guarantee whatever that the claim will succeed.
• Check whether the employer is in a financial position to pay compensation awards if the claim succeeds.
• Never run time limits to the wire. This causes unnecessary stress and can cause real problems, for example if IT equipment doesn’t function properly on the days before the time limit runs out or administrative mistakes on the part of the tribunal. Time limit dates should be carefully diarised. My own practice is to diarise the dates twice: once for the actual date and once on a week before to give an extra week.
• If your aim is to receive an apology or an acknowledgment of wrongdoing, don’t hold your breath. The system runs on money compensation issues, like most of English civil law.
• Don’t expect communication with the tribunal to run smoothly. It is crucially important not to run deadlines to the wire. There may be problems with IT hardware or software. Documents can be sent to the ET electronically. You will normally receive a standard acknowledgment response. This does not always happen. You may then need to deliver hard copy of the documents by hand to ensure that they have been received. Be prepared to wait in line at the enquiry desk. Courts and tribunals are short-staffed. This is not taken into account by ET judges when deadlines have been missed.
• The key to understanding the English civil justice system including ET proceedings, is the central role of money. Almost every aspect of English law has to do with money or claims for money.

Any civil claim is best fought, not with reference to the rights and wrongs of the case, the relevant law, the strength of the evidence or the right to justice. The key issue is money. What, in financial terms, does the claimant seek to achieve? If this approach is adopted, the case is more likely to run smoothly and the chances of success are increased.

Claimants need to be aware at the outset that ET proceedings can be very expensive. I have lost count of the number of clients who have not been able to start or continue their cases because of lack of money.

• Consider the risk of costs being awarded against you. This is explained in more detail below.
• Beware of no-win no fee schemes. No-win no fee sounds deceptively attractive but be aware that conditional fees, as they are known, are governed by complex regulations. There are many examples of successful claimants receiving a very small percentage of tribunal awards after conditional fee lawyers have taken their percentage. No win no fee has been described as a grotesque over-simplification. In reality, it has developed into an almost impenetrable jungle of regulations and procedures, mostly concerned with insurance premiums and an element of moneylending. It has also been described as another gimmick to avoid state responsibility and to secure justice on the cheap.

In outline, a solicitor assesses the chance of success in a case and decides on a success fee to be paid on top of normal fees if the claim succeeds. This often includes the cost of an insurance policy to cover costs if the claim fails.

• Always be ready to negotiate a settlement of the claim.
• Consider sending a letter before action. This should briefly set out the facts of the matter and threaten tribunal proceedings unless a realistic financial offer of settlement is made. The letter should state a short deadline for a response and should advise the other side to show the letter to their insurer. There are three possible responses to such a letter. First, it may be ignored. Second, there may be a complete denial. Third, an offer may be made. It is very difficult to predict in advance which response will be received (if at all). Care should be taken to make sure that these communications do not affect time limits for tribunal claims.
• Remember that if you are up against a large employing organisation, it will probably have instructed a major firm of solicitors and/or a barrister to represent it. You are causing the employer major expense and inconvenience, whatever the outcome of the case. Such firms may charge at least £300 per hour. Large firms of solicitors will probably be handling a large number of cases simultaneously. They may engage in high-pressure tactics which come close to bullying. These can be difficult to resist, but if the claimant has a reasonable case, such pressures may be ineffective.
• Parties to ET proceedings have a general duty to co-operate. This does not mean that communication with the other side has to be deferential. In my experience, an element of pomposity and arrogance, perhaps with a few Latin words thrown in, is a good way of dealing with bullying tactics from solicitors.

Initial advice for employers

• Comply fully with all contractual and legal obligations.
• Consider closing the matter down with an offer of financial settlement. This is likely to save cost in the long-term and will avoid the stress of litigation.
• Be prepared for a long, hard fight.

Historical note

Employment tribunals were created as industrial tribunals by the Industrial Training Act 1964. Industrial tribunals were judicial bodies consisting of a lawyer, who was the chairman, an individual nominated by an employer association, and another by the TUC or by a TUC-affiliated union. These independent panels heard and made legally binding rulings in relation to employment law disputes. The jurisdiction and powers of these tribunals were very limited.

Under the Employment Rights (Dispute Resolution) Act 1998, their name was changed to employment tribunals from 1 August 1998.

When I started practice, industrial tribunal cases were a welcome change from Crown Court trials. Hearings were held in a committee room and were informal. There was very little pre-hearing case management. Procedure and evidence at the hearing were at the discretion of the chair. The hearings were more like a round-table discussion than a formal court process.

The Report of the Donovan Commission in 1968 stated that the aim of the industrial tribunal (as it then was) should be to make available an easily accessible, informal, speedy and inexpensive means of resolving employment disputes.

On the contrary, increased legalism, which has inevitably accompanied the expanded role of lawyers in the employment tribunal, is virtually impossible to reconcile with the expressed expectation that employment tribunal hearings have always been suitable for self-representation or assistance by non-lawyers including trade union officials and advice workers.

In a case heard in 2009, the judge made the following points:

• Employment tribunal proceedings were intended to be as short, simple and informal as possible
• An over-rigid approach was not required when an employment tribunal was considering an application
• We all know that that intention has not been fulfilled and that employment law and practice have become difficult and complex.

The key source of employment tribunal procedure is the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, as amended. It is fair to say that a good grasp of these Regulations is not for the faint-hearted.

They include a statement of their overriding objective, which is to enable tribunals to deal with cases fairly and justly. Further details of the overriding objective are set out in the Regulations.