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 their employer (or ex-employer), they you will be referred to as the Claimant. The employer (or ex-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, 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 and a list of issues.

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

Complex directions

If the ET1 is complex or includes a complaint of unlawful discrimination, the employment tribunal will normally list the case for a preliminary hearing (rather than issue a CMO) where directions will be fixed by an employment judge. The tribunal will normally send both the Claimant and the Respondent a pro-forma agenda for case management to complete and if possible, agree before the preliminary hearing.

At the preliminary hearing, the tribunal will set out the list of issues, the date for compliance with the directions and fix a date for the final hearing.

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)
a statutory redundancy payment (redundancy cases only)
a protective award (in collective redundancy situations only)
injury to feelings and interest (in discrimination/whistleblowing cases only).

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). Typical documents to be provided would include copies of job applications and details of any state benefits that are being claimed.

Employment tribunals are not a place where Claimants can expect to receive a windfall and for claims 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 a list (normally in chronological order) of all the documents in their possession that are relevant to the case. This does not have to include the ET1 and the ET3. Each party will then send copies of those documents if requested.

In some instances, either the Claimant or the Respondent will not have certain documents that do not appear on the other’s list of documents but are relevant to the 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 31 of the Employment Tribunal Rules of Procedure 2013.

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 mutually exchanged by the parties .

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.

List of issues

If the Claimant and the Respondent and legally represented (by Marjon Law), the employment tribunal will expect the parties to agree on a draft list of issues or questions that the tribunal will need to decide at the final hearing 1 week before the final hearing.

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.