ACAS Early Conciliation
An employee must first notify ACAS that they intend to submit a claim through a process called Early Conciliation – if employer and employee are both willing to engage in ‘off the record’ negotiations known as Without Prejudice, then ACAS can facilitate this to agree Settlement Terms.
If neither party wish to engage in conciliation or if conciliation is unsuccessful, then the employee is issued an Early Conciliation Certificate. The employee is unable to proceed to tribunal without this.
Employee Submits a Claim – ET1 Form
If the employee wishes to pursue the claim they are required to complete a form called an ET1, which relates specifically to them being able to bring a claim against an employer.
This form must be submitted within time limits that will vary depending on the type of claim.
The form contains basic information such as:
- personal details of the employee (known as the claimant)
- details of the employer (known as the respondent)
- details of employment (dates, location, job role, etc)
- details of pay and benefits received
- details of the claim being made
- what resolution is being sought (such as compensation, reinstatement, etc)
- details of the claimant’s representative, if they have one
Claims are usually submitted online but can also be submitted by post or in person.
Employment Tribunal accepts the claim
There are only a few circumstances in which the Employment Tribunal will instantly reject an ET1 form; such as when the form used is incorrect or does not contain the required information, the Early Conciliation reference number has not been provided, or if the Tribunal does not have jurisdiction to hear the claim.
Otherwise, a case number will be allocated to the claim.
Employer notification and response – ET3
The employer, or respondent, is then notified of the claim. This will be in writing and usually to an address that the employee, or claimant, has stated on the ET1 form – see below to find out why this may cause difficulties.
The employer then has only 28 days to submit their defence to the claim on the required form, known as an ET3. In certain circumstances, an extension request may be granted, but each request will be considered on a case-by-case basis and results are not guaranteed.
Tribunal reviews the case
When all relevant documents have been received, an Employment Tribunal Judge will review the case to confirm whether the claims and defences are within the Employment Tribunal’s remit.
The Judge may dismiss all, or part, of a claim if they feel the Tribunal does not have jurisdiction, or the claim or response lacks what is known as “reasonable prospects of success.” The Judge will write to both parties explaining their judgement and the reasons for their decision, usually within a timescale that allows either party to make further written representations if they disagree with the judgement.
Preliminary Hearing / Case Management Order
It’s important to note that there are many variations on what might happen next, but normally a Preliminary Hearing will be scheduled at which both parties will receive the opportunity to outline any key outstanding issues to an Employment Tribunal Judge. The key issues of the case will be also be identified.
The Judge will then usually set what are called ‘Case Management Orders’. These are dates and deadlines that both parties must agree to before the case can progress to the hearing. These might include a date for exchanging evidence or witness statements, but, again, this will always be case-specific.
At the preliminary hearing, a date may be set for the full hearing of the case. Both parties and the Judge will also agree to the expected duration.
Preparation for the hearing
Both parties will use the interim to prepare for the hearing whilst following the case management orders set by the Employment Tribunal. This will include agreeing the ‘bundle’ – the documents that will be relied upon as evidence.
Employment Tribunal Hearing
Both parties – the employee/claimant and the employer/respondent – need to attend all the days of the hearing at the Employment Tribunal.
The case is usually heard by an Employment Tribunal Judge and two lay-members – usually, these will be individuals with a knowledge of employment law who have received special training to sit on an Employment Tribunal Panel.
Depending on the length and complexity of the case, the Employment Tribunal may, after some time in deliberation, issue its judgement at the end of the hearing.
If time is insufficient, the judgement is usually issued to both parties, simultaneously, by post.
If the Employment Tribunal decides to uphold the employee/claimant’s case, it will then progress to a Remedies Hearing, where both parties are able to communicate how they feel the case might best be resolved. This might be through reinstatement, reengagement (returning to the same, or a similar, job without loss of pay or continuity), or compensation.