EMPLOYMENT TRIBUNAL PROCEDURE

A guide to employment tribunal procedure from the employment law experts

Marjon Law, specialist employment lawyers is owner-led by Marc Jones, who is ranked and recommended in legal publications as a leading employment law solicitor, with over 20 years of experience practising solely in employment law.

If you would like urgent advice on employment tribunal claims, please contact us as soon as possible.

This web page should be read in conjunction with the web pages EMPLOYMENT TRIBUNAL CLAIMS and EMPLOYMENT TRIBUNAL COSTS

Preparing an employment tribunal case for a hearing

If an employee or ex-employee brings a claim against an employer, they you will be referred to as the Claimant. The employer defending the claim will be referred to as the Respondent.

A Claimant starts the employment tribunal process by completing an online claim form (called an ET1) and the Respondent will defend the claim by completing a response form (called an ET3).

Standard directions

In most cases (eg unfair dismissal), once an ET1 has been accepted by an employment tribunal, a case management order (CMO) will be issued setting out standard directions, together with time limits for compliance with those directions. This will normally involve:

• details of the remedy sought with supporting documents
• disclosure of documents
• preparation of a hearing bundle
• the exchange of witness statements.

At the same time as the CMO is sent out, the employment tribunal will send a notice of the final hearing date.

Details of remedy

The employment tribunal will normally send a pro-forma with the CMO for the Claimant to complete, setting out his/her loss. If the Claimant is legally represented by, say Marjon Law, we will prepare a comprehensive schedule of loss, which is more detailed than the tribunal’s pro-forma.

The remedy could include:

• compensation (eg non-payment of wages)
• a compensatory award (unfair dismissal cases only), which would include loss of wages after dismissal, including pension contributions and/or unpaid wages and/or failure to pay notice money
• a basic award (unfair dismissal cases only).

For further information on compensation, see the web page Employment tribunal compensation

Once the pro-form or schedule of loss is completed, a copy must be sent to the Respondent (or its legal representatives).

Copies of documents in support of the Claimant's loss must be provided to the Respondent (or its legal representatives). Typically the documents to be provided would include copies of job applications, details of any state benefits being claimed and earnings from other employment.

Employment tribunals are not a place where Claimants can expect to receive a windfall. For a claim of unfair dismissal, a tribunal will expect the Claimant to have mitigated their loss. This means reducing the financial loss ie taken steps to find alternative employment. This does not necessarily mean the same type of employment.

At first, it may be reasonable for the Claimant to look for jobs on a similar salary and in a similar area to their old job. However, as time goes by, the Claimant will be expected to consider work, which may be less well paid, part-time or in a different area to the previous job.

List of documents

Both the Claimant and the Respondent will provide copies of all the documents in their possession that are relevant to the case. This does not have to include the ET1 and the ET3.

In some instances, either the Claimant or the Respondent will not have certain documents that are relevant to their case. Therefore, the party without those documents can request copies of the documents from the other party. If those documents are not disclosed, the party seeking those documents can apply for an order from the employment tribunal for disclosure under rule 33 of the Employment Tribunal Rules of Procedure 2024.

Hearing bundle

It is normal practice for the Respondent to prepare the hearing bundle. The bundle should be either fastened together or in a folder:

• in a logical order (normally pleadings first ie ET1, ET3 and CMO followed by documents/correspondence)
• in chronological order
• with an index
• paginated.

The Respondent will normally be required to provide sufficient copies of the bundle for the Claimant and the employment tribunal.

Witness statements

These are exchanged by the parties on the same day.

Witness statements should be the evidence supporting the Claimant's ET1 and the Respondent’s ET3 and where the witnesses are prepared to attend a final hearing. They should set out a succinct chronological history of the relevant events of the witness and contain information about those matters about which they can verify rather than speculation or hearsay.

Parties normally want to bring witnesses. But this is not always appropriate. Parties need to think carefully about whether this is a good idea. A good witness can be excellent. A bad witness can lose a case. Vague witnesses are not helpful. Always consider exactly what a witness can say that is relevant to the issues.

So-called "character witnesses" are not relevant or useful in an employment tribunal case.

Early preparation of witness statements will ensure that:

• recollection of events is recorded while matters are fresh and before they are subject to challenge
• witnesses have a proper opportunity to think about the matters and/or events they are dealing with, and their evidence is presented in a clear and logical fashion
• witnesses have the chance to thoroughly consider any documents that are referred to in their statements
• the words used in the statements are the witnesses own and they should feel comfortable with what they say
• any areas of difficulty or concern can be identified at an early stage so that witnesses can be properly prepared to deal with them at the full hearing.

The format of a witness statement in a tribunal is normally:

• double spaced
• numbered paragraphs
• page numbered
• cross-referencing to the documents in the hearing bundle.

Preliminary hearings

If the ET1 is complex and includes a claim for unlawful discrimination and/or whistleblowing, the employment tribunal will normally list the case for a preliminary hearing (rather than issue a CMO) with an employment judge. The tribunal will normally send both the Claimant and the Respondent a pro forma case management agenda to complete and, if possible, agree before the preliminary hearing.

The case management agenda will set the issues in the can and suggest directions, including the length of a final hearing.

At the preliminary hearing, an employment judge will clarify the list of issues, the date for compliance with the directions and list a date for the final hearing. The employment judge will also explore if the parties are interested in judicial mediation.

After the preliminary hearing, the tribunal will send the parties a record of the preliminary hearing setting out what was discussed, including case management orders for providing:

• a schedule of loss
• disclosure of documents (normally by lists rather than sending copies)
• preparation of a hearing bundle (normally by the Respondent)
• exchange of witness statements
• a neutral chronology of events and a cast list.

Should either the Claimant or the Respondent make an application during the course of the proceedings (eg to amend the ET1), the tribunal will normally list the application for a preliminary hearing.

Note: this web page refers to employees; however, in some instances, employment tribunal claims can be made by workers, contractors and job applicants.

The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

Why choose Marjon Law for employment tribunal representation?

We have been involved directly and indirectly with hundreds of employment tribunal claims for clients for over 20 years.

As specialist employment lawyers, our clients' interests are paramount to us. 

We ensure that all our clients get the best representation possible.

We will prepare all the necessary documents as part of the tribunal process and represent or organise representation for all hearings.

Contact us today ...