Employment tribunal proceedings
Employment law- Tribunal proceedings
In most unfair dismissal claims, the starting process for your employment tribunal proceedings must commence within 3 months less one day, from the date your paid employment ended.
For discrimination claims or complaints relating to non-payment of salary or holiday pay, the 3 month period begins from the date of the act complained of (which may be continuing, in which case the time for commencing the process will also continue to run). So, the last act of discrimination or non-payment of salary, for example, is of prime importance.
In terms of what that “starting process” is, ACAS must be notified within the above 3 month less one day period of the existence of your claim, thus invoking its “Early Conciliation Service“.
After ACAS has been contacted, the time limit for making a claim to the tribunal is automatically “paused” for up to 6 weeks. This is often known as “stopping the clock” on the usual running of the 3 month time period. If the case is not settled by this time, ACAS will bring the early conciliation to a close and issue a formal certificate to this effect. It is important to note that the ACAS early conciliation period can be shorter than the 6 weeks if you and/or your employer decide not to use their 6 week service in full. If this happens, a certificate drawing the process to a close will be issued at that time.
Once the ACAS certificate is issued, the time period for issuing the tribunal claim will start to run again. The calculation of the new and extended time period is quite complicated, and it will be either one of the following in routine unfair dismissal claims:
- If you receive your ACAS certificate before your initial limitation period of 3 months less one day from your last day in employment, you should add the length of time in days that your case was in early conciliation to your initial limitation period. So for example, if you are early conciliation for the full 6 weeks, this amounts to 42 days. You need to look at a calendar and count 42 days from your initial limitation period (of 3 months less one day from the end of your employment) to give you the extended date in which to lodge a claim.
- If you receive your ACAS certificate after your initial limitation, then you simply add 1 calendar month to the date on which you received the certificate to find the new extended deadline to issue your claim. This is more likely to be the case where you have left it very late to lodge the claim with ACAS- say only a few days before the initial limitation period of 3 months less one day.
As can be seen from the above, it is often more beneficial not to lodge the claim with ACAS too early if you want to maximise the time to negotiate with your employer, rather than facing earlier deadlines than necessary to lodge the tribunal claim.
If ACAS are not contacted within the 3 month time period, you will not be able to issue your tribunal claim and you will also be too late to contact ACAS . Although you can make an application to the tribunal to present your claim out of time, there are very few exceptions where this will be granted, and you are therefore likely to be time barred.
Employment tribunal fees
Following a decision of the Supreme Court on 26th July 2017, there are no longer any tribunal fees that you will need to pay when issuing your claim.
How does the ACAS Early Conciliation Service work?
First and foremost, you do not have to use ACAS to conciliate your claim, and in many cases, it will not be in your best interests to do so. ACAS are not your “advisors”, and will not protect your interests in the same way as your lawyer would. Indeed, we have seen numerous instances where employees have come to us after their employers had flatly refuse to negotiate a settlement after being approached by ACAS. This makes future negotiations and tactics much more difficult than would have been the case if a legal professional had made the initial approach.
What must be done, however, is that your claim does need to be lodged with ACAS under their Early Conciliation Service before a claim can be made to the employment tribunal. Either you or your lawyer can do this. The registration of your claim is therefore not the same as ACAS actually dealing with it.
In terms of what needs to be provided to ACAS under the Early Conciliation scheme, this includes very basic details of the claim, including your contact information. ACAS has indicated the quickest way to do this is via its website at acas.org.uk/earlyconciliation. The notification will need to be made within the normal time limit for bringing a claim (3 months less one day for routine unfair dismissal cases).
ACAS will then attempt to make contact by the end of the following working day to check the information provided, find out what the claim is about and explain the early conciliation process. At some point after this, an ACAS conciliator will call either you or your legal advisor to obtain consent to approach the employer to begin the conciliation process.
If you have a legal advisor, then ACAS can be informed to either hold off on any process their end whilst negotiations are proceeding or they can simply be told that their services are not required. If ACAS are involved in negotiations, it may not be possible to make contact with your employer, or your employer may not wish to engage in the process, In either of these scenarios, if it becomes clear that ACAS are not required, they will bring the process to a close and an early conciliation certificate will be issued. You will then be provided with a certificate number and are free to lodge your claim, but there are important (and complicated) time limits that will need to be complied with once the certificate has been issued.
If you have already been through the ACAS Early Conciliation process without success and wish to now issue tribunal proceedings or continue to negotiate, please contact us. This is very familiar territory for our firm and we will advise you what is best to do and whether a positive outcome can still take place without the necessity of issuing proceedings (as is often the case).
Remember, you usually have to be employed for 23 months and 3 weeks before qualifying to issue a claim for unfair dismissal.
Issuing your tribunal claim
A claim must be lodged on a specific form called an ET1, which should set out in full the factual allegations and legal complaints.
The Tribunal will review the ET1 and assuming the claim is accepted, it will then send the form to your employer (who is referred to as “the Respondent”). Your employer then has 28 days in which to submit its formal response to the claim, using a form called an “ET3”. The ET3 will state whether the claim is resisted (in whole or in part) together with the grounds.
What happens next?
Both you and your employer will be given directions on how the case is to proceed, and deal with the time periods for your to exchange evidence, including witness statements, and also to agree a bundle of relevant papers to be used at the hearing. In some cases, there will be a specific directions hearing rather than it being dealt with in correspondence.
You and your employer will be given written notice of the hearing, which can only be changed if there is a good reason to do so, e.g. on medical grounds or the unavailability of a relevant witness.
At the hearing, you will usually be called to give your evidence first and call your witnesses, which will then be cross examined by your employer. The atmosphere of an employment tribunal is more informal than a court. It is not intended to be oppressive to the employee, many of whom represent themselves.
The judgement is usually given the same day as the tribunal finishes in the more simple cases. The judgement is otherwise reserved and it may be many weeks before it is available.