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Employment Tribunal Process
Assuming we are instructed from the outset of an employment dispute, we would expect the following events to occur in the ordinary course of events.
ACAS Early Conciliation
In the majority of cases, it is a mandatory requirement for the employee to invoke and exhaust the ACAS Early Conciliation Procedure prior to a claim being issued at the Employment Tribunal.
ACAS is an independent body, funded by the government, which may assist the parties to resolve a dispute without the need for the employee to issue Tribunal proceedings.
The ACAS Early Conciliation period typically lasts up to one calendar month, providing that both parties are interested in exploring settlement negotiations, or longer up to an additional 14 days, providing both parties agree.
If the ACAS Early Conciliation period does not result in settlement, ACAS will issue the employee with an EC Certificate which will enable the employee to issue their claim at the Employment Tribunal. The ACAS conciliation officer will be appointed after proceedings have been issued to explore again whether settlement is viable – settlement can occur at any time.
At this point, an employee can start proceedings against their employer.
The employee must file a Form ET1 setting out details of their claim at the Employment Tribunal.
There are strict time limits to commence proceedings which we would advise an employee of on instruction.
Providing the Employment Tribunal accepts the claim on issue, the Form ET1 together with a Notice of Claim will be sent by the Employment Tribunal to the Employer and any other party.
The Notice of Claim will provide a deadline for the Employer to file its ET3 Response (defence) to the claim, usually within 28 days of it being sent out by the Employment Tribunal.
At this stage an employer would be wise to seek Legal representation.
Upon receipt of the ET3 Response, the Employment Tribunal will consider the complexity of the case and whether a preliminary hearing is required (for example, to determine if all or any part of either the claim or response should be struck out (if it is apparent either have no reasonable prospects of success), or alternatively, to deal with case management or administrative issues.
Otherwise, in straight forward cases where there is an arguable case, the Employment Tribunal will set down a series of case management directions contained in an order – these are steps that each party must take to prepare the case for a final hearing and are outlined further below.
Case Management Order
The steps required to prepare a case for a final hearing will often include the following which are not intended to be exhaustive:
- Details of the remedy sought by the employee together with their financial losses (set out in a Schedule of Loss)
- The parties shall exchange lists of documents and provide copies of any documents
- The parties shall exchange witness statements of those witnesses whose evidence they intend to rely upon at the final hearing
- The parties shall agree on a bundle of documents known as a hearing bundle for use at the final hearing (which the employer is usually required to provide copies of)
- The parties shall prepare a list of issues to be decided by the Employment Judge at the final hearing (and depending on the nature of the case and its complexity, a chronology and statement of agreed facts possibly)
The Employment Tribunal will make arrangements to fix a date for a final hearing upon the claim being issued.
The number of days required to dispose of a claim at the final hearing vary from case to case and depend upon the nature of the claim, the complexity of the case and the number of witnesses required to give evidence.
We work closely with barristers who specialise in Employment Law and regularly brief barristers to appear at final hearings.
If a party is not successful it may be open to them to lodge an appeal, providing that is arguable based on a point of law.
There are strict time limits to lodge a Notice of Appeal at the Employment Appeals Tribunal which we can advise you of if instructed.
These vary depending only upon the resources of the Employment Tribunal.
As a very general guide, assuming a case remains contested and there is no settlement at any stage, we would expect a case to be concluded within 6 to 12 months of issue.
Providing a case is relatively straightforward and does not require more than 1 to 2 days at a final hearing we would expect that to be concluded within 6 months but again, that depends upon the resources of the Employment Tribunal.
The case management order is likely to be set down over a longer period of time in complex claims which are also likely to have a greater number of days at a final hearing which will impact on the overall time estimate.
To read more about the cost of Employment Tribunal for Unfair/Wrongful Dismissal please click here.