Whether you're an employer or an employee the best advice is to seek legal advice at
an early stage in any dispute or workplace situation. This should be done
as early as possible to seek advice on tactics and also to clarify what claims
may exist. If you are an employee and you decide that you need to bring a claim
and this follows a dispute at work, perhaps after you've followed the
various policies such as a bullying policy or a harassment at work policy or
maybe even a grievance policy, then you will need to follow a strict time limit
in which to enter your claim - usually this is three months so if you are an
employee and the last act that you're complaining about or your dismissal was
nearly three months ago then you really must act immediately or
you'll lose the the chance to bring a claim in the employment tribunal.
Sometimes an employee's workplace situation becomes untenable or
unbearable and they feel the need to simply leave the employment on a very
short timespan, this is sometimes known as constructive
unfair dismissal and will follow an event such as blowing the whistle or a
discriminatory act which they complain about or maybe they don't even have time
to complain about before walking out and this would be, for example, on the grounds
of race, sex, disability, sexual orientation, age, or maternity or
pregnancy, these are known as constructive unfair dismissals and they
should only be undertaken with legal advice wherever possible.
Before entering a claim in the employment tribunal it is now obligatory
for an employee to enter into a process known as early conciliation through
ACAS. ACAS is an independent body which can be contacted via an online
form or on the telephone and the purpose of early conciliation is to seek
a resolution between the employee and the employer and the ACAS conciliator
will try and do that, the resolution may be an apology or it
may be a settlement sum or some other form of agreement which the two parties
enter into. It is only when the conciliation period ends that an
employee can enter an employment tribunal claim and they must be able to
enter on the claim form a conciliation certificate number, if a claimant doesn't
enter into early conciliation the claim will be rejected. Once an employee enters
a claim ACAS can continue to conciliate but the early conciliation
period will have ended.
At some stage the employee will decide whether or not they wish to enter a
claim, this is done by way of an ET1 a claim form which is found on the gov
website and it can either be done online or printed off and sent to the tribunal,
it's an easy form which largely consists of tick boxes but there is a section in
which the claimant must enter the details of what the claim is about and
this is done in everyday language explaining chronologically how and why
this claim has occurred. The claim has to exist in law and so for that reason it
is advisable to seek some advice in relation to whether or not the claim is
covered by law.
There are strict time limits to bringing a claim, as I've mentioned earlier it is
usually three months from the last act complained of or the date of dismissal,
if there's any doubt about the limitation date then you should seek
advice from a lawyer or from ACAS but if you miss that three-month deadline
the chances are that you will not be able to bring your claim and you will
lose the opportunity to do so.
If you are an employee who has been dismissed you should try and appeal the
dismissal internally before bringing a claim, it's important to realize however
that appealing doesn't change the date of your dismissal nor does it extend the
time in which you can bring a claim, the date of the dismissal will remain the
same. If you appeal you should make sure that you still keep an eye on the
limitation date for bringing a claim and for that reason you should not delay
putting in a claim pending an appeal. If you bring a claim you should also
remember that that will not change the dismissal because the dismissal will
stand, as will the reason for the dismissal, the only way of reversing a
dismissal, for example, for gross misconduct will be to go through an internal appeal.
Once you've had your notice of acknowledgement from the tribunal and
you're awaiting the case hearing what you will find is that it is listed
usually between three months from the date of the response going in to nine
months and this will depend on the availability of your witnesses, judicial
resource, and how long the case is. The longer the case
generally speaking the longer you'll have to wait until it's heard.
The vast majority of claims that are brought in the employment tribunal are
brought for unfair dismissal; only employees can bring claims for unfair
dismissal and usually they will have served at least two years in their
employment. Self-employed contractors and workers, casual workers or zero-hour
workers, can't bring unfair dismissal claims. An employee is somebody who works
under a contract of employment and that's a short form of the legal
definition. To bring a claim of unfair dismissal you will have been dismissed
for a reason that's not a fair reason and there are only five fair reasons and
those are: redundancy, conduct, capability, illegality or some other substantial
reason - if your reason for dismissal is not one of those reasons then it is
likely to have been unfair. It is essential for an employer to have
followed a fair procedure, carried out a reasonable investigation, and acted
reasonably in dismissing that employee and those are tests that are brought in he employment tribunal.
So if a matter gets before an employment tribunal for a hearing the tribunal will
decide on an unfair dismissal, or indeed any dismissal or a claim that's brought,
for example discrimination where the employee remains in employment on the
basis of fairness. In dismissal cases the tribunal will take into account whether
in all the circumstances the employer has acted fairly, in these cases the
tribunal will even look at the size of the company and the administrative
resources of it when it's been acting in a dispute or in a dismissal procedure.
The ACAS code of conduct will be taken into account by the tribunal but
it is not a lawful dictate to a tribunal, it will simply be guidance that will be
considered by the tribunal. As I said before, tribunals will look
carefully at how long an employee has been in service and for unfair dismissal
cases an employee must have two years or more. In dismissal cases where there have
been discriminatory reasons, or an employee has been dismissed for blowing
the whistle, there is no service requirement, an employee can bring a
claim after a few hours - indeed for discrimination even
applicants for roles can bring claims in the employment tribunal, in other words
they will not have been an employee at all. When an employer resists a
claim in the employment tribunal it would be very wary of the fact that an
employment tribunal can order reengagement of an employee, but
ultimately an employer doesn't have to take an employee back and can pay
compensation instead.
So I've mentioned the fact that claims can be brought in an employment tribunal
by people who aren't employees so these can be self-employed contractors or
workers who are either casual workers or zero-hours workers, it amounts to the
same thing, and they can bring claims for detriments under the following
regulations: the national minimum wages regulations, rights under the working
time regulations 1996, making of a protected disclosure which are sometimes
known as whistleblowing which is under the Public Interest Disclosure Act of
1998, and also rights under the part-time workers - this is the prevention of less
favorable treatment regulations 2000. Whether you are an employee, a worker, or
a self-employed contractor you can bring claims for discrimination under the
Equality Act 2010 if your contract is terminated by an employer, or by an
organization, for a discriminatory reason - or if you're treated unfairly for a
discriminatory reason solicitors need to be brought in, if possible, or you need to
seek advice in some way on tactics and whether or not your claim is covered by
the law. Qualified lawyers are needed to review the following: contract
documentation, looking over claims for unfair dismissal or discrimination,
compromise and severance agreements, looking at disciplinary procedures,
ensuring that redundancy and dismissal procedures are fair, and any allegations
into discrimination on the grounds of a protected characteristic such as race,
sex, disability or age, and sexual orientation.
Thank you for watching this
short video about how you can bring an employment tribunal claim and in terms
of employers how you can resist an employment tribunal claim - in both cases
it is important to seek legal advice as the process has become much more legal
than it used to be, if you need more help or information please do get in touch.