Rights and Responsibilities
Both employers and employees have rights and responsibilities and to behave in such a way so as not to destroy the Trust and Confidence in the employment relationship. You, as an employee have a duty to work loyally, to the best of your ability and to obey reasonable management instructions. Your employer has a duty to behave in reasonable and fair way and to ensure they follow the law with regard to your Statutory rights. It has become increasingly difficult for an employee to take action against an unfair employer for lots of reasons. Employees now need 2 years service for most claims in Tribunal, employers only have to show the decision was in a reasonable range of responses and Employment Tribunals cannot substitute their view for that of the employer. There is only one recourse in law for an employee being bullied, if an internal grievance is either not dealt with or upheld, and that is to resign and claim constructive unfair dismissal (if they have 2 years service). This is a difficult claim to win.
The information below will help you understand what your employer can or can’t do and what action you may be able to take.
Can I claim whilst still employed?
Some claims can be pursued even if you are still working for your employer such as discrimination claims, including harassment and victimisation, Equal pay family rights (maternity, paternity, adoption, parental leave, flexible working), working time rights, and for trade union related activities. Contractual claims can only be heard by a tribunal if they are outstanding at the termination of your employment. For further details see consultancy
Are there any Risks in claiming to a Tribunal?
Normally you will not have to pay costs if you lose your claim unless you have been vexatious and pursued a claim that you have been told had no or little prospect of success in which case you may find that you have to pay at least some of the employer’s costs.
Making a Claim
Our guide for employees provides you with the information to assess
1. Whether you are eligible to make a claim
2. What claim(s) you can make
3. How to make a claim to a tribunal
4. How to prepare for the tribunal day
5. How to represent yourself on the day
6. Some do’s and don’ts in the procedure
DELETE LINK 1 to pay pages (below)
Who can clam?
Only employees benefit from the full range of employment rights provided they meet the various qualification criteria. Workers also have some limited rights. The truly self-employed are only entitled to protection from statutory discrimination which covers sex, sexual orientation, gender re-assignment, marriage and civil partnership, race, religion or belief, disability and age. All workers, including the self-employed are entitled to work in a safe environment whilst working for the employer and from any form of discrimination. For a summary of employment rights see
LINK to tables below.
Continuity of Employment
Many rights depend on having the qualifying length of continuous employment with the employer. Casual and seasonal workers have breaks in employment and often suffer from a break in continuity of employment so do not qualify for service based statutory rights such as unfair dismissal or redundancy payments. In special circumstances there may be an “umbrella” contract which means they do qualify.
Where an agency worker is taken on a temporary basis and then made permanent, it should be noted that his or her continuous employment will date back to the date that he or she first started as an agency worker. Those on zero contracts also have continuity of employment from when they started with the employer.
There are a wide range of different types of employment contract and the employment status can be difficult to determine.
You do not need any qualifying service to make a claim of discrimination. You will normally need 2 years’ continuous service to claim unfair dismissal, constructive unfair dismissal (where you resign because the employer has breached a fundamental contract term), or a written reason for the dismissal. There are exceptions to this, the main ones being if you are dismissed for a reason connected to pregnancy, maternity, paternity, adoption or parental leave, Trade Union or Health and Safety responsibilities, whistle blowing or exercising any of your Statutory rights, including time off. In these cases you do not need any qualifying service. If you are unsure you can get further information from our consultant
The usual time limit for lodging a claim is 3 months from the date of dismissal, or the last act of discrimination. You can make a claim of discrimination whilst still employed or even if you are not employed by that employer if you believe the reason you were not offered the job was for a discriminatory reason. The time limit for making Redundancy Pay or Equal Pay claims is 6 months but this is only for due pay not for claims of unfair dismissal for redundancy which is still 3 months.
Who is an Employee?
An employee is someone who has entered into or works under a contract of employment (a contract of service), whether full or part time. This is actually quite complex but generally there are three main tests for an employee:
• Mutuality of obligation: Employees have an expectation of regular work from the employer and the employer expects the employee to be at work at the agreed times.
• Control: An employer bears the financial risks, provides equipment, controls the work of the employee, says whether they can go on holiday, disciplines them and deals with other employment issues such as performance and attendance.
• Personal services: The employer expects you to turn up and do the work, you cannot send a substitute.
Part-time employees have the same rights to benefits as comparable full-time employees although benefits may be pro-rated such as holiday, public holiday and bonus scheme entitlements. Training however cannot be pro-rated.
Employees on a fixed-term contract ie one that specifies a start and expiry date or completion of a specific task also have the right not to be treated less favourably than comparable permanent employees. This covers their terms and conditions of employment, training, promotions or transfers and to be informed of any suitable permanent vacancies that may arise.
The expiry of a fixed term contract without its renewal is a dismissal in law. This means the employee will be able to claim unfair dismissal if there is still work for him or her to do or a redundancy payment where the need for the work has ended, subject to the requisite qualifying service (2 years). Provided that the employer has acted reasonably, the dismissal for non-renewal is unlikely to be held to be unfair. One essential action that the employer must take is to consult with the employee in good time before the expiry of the contract. This consultation should:
- Explain the reasons for the non-renewal and
- Explore the potential effects of it on the employee and
- Discuss any other opportunities within the organisation.
However, an employee on a fixed-term contract cannot claim that he or she has been treated less favourably than a permanent employee simply because his or her contract has been terminated.
In addition, an employee who has been employed under one or more successive fixed-term contracts lasting four years are able to claim that they are permanent employees. A fixed term contract may provide for notice but if it does not then an employee may be entitled to be paid until the end of the contract term.
Annualised Hours Contracts
In these contracts working time is defined in terms of the number of hours is averaged over the year rather than per a working week. The method of calculating hours should account for holidays, public holidays, shift and overtime arrangements and the calculation should be set out in the contract of employment. There is mutuality of obligation, control and personal services so the employee has the right to claim the full range of employment benefits if they qualify.
Zero Hours Contracts
A zero-hours contract is generally one where:
- the employer is not obliged to provide any minimum working hours and
- the worker is not obliged to accept any work offered.
Employees are only paid for work done.
In most situations this means that there is no mutuality of obligation, meaning that workers do not acquire the employment status of an employee and so gain the full range of employment rights, the chief one being protection from unfair dismissal. Contracts need to be drafted carefully and must reflect what actually goes on in practice. If the employer insists that the individual in question is required to undertake the work, if offered, this may infer employment status. However, this is countered by the fact the employer does not guarantee work. The courts have yet to decide on these matters.
The Employment Rights Act 1996 (the Act) has made it illegal for zero-hours contracts to include a clause prohibiting the worker from working for other employers. An employee can therefore no longer be required to be on call at home waiting for work. This is termed an exclusivity clause and the Act states that individuals on a zero-hours contract should not be unfairly dismissed or subjected to a detriment, such as not being given work, for a reason relating to a requirement for exclusivity.
There is no qualifying period to bring an unfair dismissal claim for this reason, and any claim made to a tribunal will depend on the tribunal finding an exclusivity clause in the employment contract
Employed or Self-employed.
There is a difference in law between a contract:
- “for service”, ie one that is used for appointing an independent contractor on a freelance basis and
- “of service”, ie one that establishes the relationship of employer and employee between the parties.
There are a number of differences indicating that a contract is one “of service” for employees rather than “for service” self employed.
|Contract “of service”||Contract “for service”|
|Degree of Control||The employee is told what to do, how and when to do it.||The contractor is taken on to do a
particular job and decides how it should
|Integration||The employee forms part of the organisation.||The contractor is in business on his or
her own account — he or she can work for other people and employ others.
|Obligations||The organisation is obliged to provide work, and the employee is obliged to do it.||There is no obligation on either side.|
|Method of Payment||The employee receives pay or salary with PAYE deductions, a payslip, etc.||The contractor issues an invoice when
the job is finished and receives a fee with no deductions. The worker may also have the ability to make a profit or loss.
|Ownership of Equipment||Equipment and materials are provided by the organisation.||The contractor may use his or her own premises, tools and materials.|
This is a complex area and changing area and the above is a summary. For further advice if you are unsure contact one of our consultants.
Workers’ cannot claim unfair dismissal or other dismissal related claims such as redundancy payments. Their rights relate mainly to minimum pay, working hours, holiday entitlement and contractual rights, such as not to have money deducted from wages. They are also entitled not to suffer any form of statutory discrimination and are covered by Health and Safety regulations whilst working for the employer. Additionally they are protected if they make a protected disclosure (whistle blowing).
Who is a Worker?
A worker is defined as an individual who:
• has entered into or works under a contract of employment or some other contract, and
• undertakes to do personally any work for another party to the contract, but is not self-employed.
The three definitive factors to look for are whether the individual:
• has a contract (whether written or oral, express or implied)
• is obliged to personally provide services
• is not in business on his or her own account.
Workers are usually agency staff but can work directly through their own company. They are subject to mutuality of obligation and control during the period of the contract but an alternative employee can usually be substituted.
The issue of whether agency workers are employed by their agency, their hirer or indeed by anyone at all has been the subject of much case law.
Currently, agency workers are generally considered not to be employees of the end user and will only be found to be so where what actually happens in practice makes that a reasonable interpretation. This will be a question of fact for the employment tribunal to decide but such cases will be unusual, eg if the contract is clearly a “sham” or the individual has previously been an employee of the end-user. This means agency workers have no right to make dismissal claims against the end user employer. Agency workers may be found to be employed by the agency, but again this will depend on the specific facts. If this were the case they would have the right to make claims against the agency.
Casual contracts are generally used where an employer requires workers to work on an “as and when” needed basis to meet fluctuating workloads. The workers are not required to make themselves available for work or to accept work when offered. As they are free to turn work down, there is no mutuality of obligation and the contract does not continue during the breaks. If workers undertake to work on a regular basis, however, continuity could result or mutuality of obligation could be implied, leading to an employment relationship. If the employee can establish continuity of employment they could make claims against dismissal. For more information see contract guidance.
The self-employed are only protected from statutory discrimination and these are the only claims that they can make against the employer.
The truly self-employed are employed on a contract for services and can refuse the work, tell the employer if they will be away on holiday (as opposed to requesting holiday), decide when they will take holiday (this may be negotiated), they decide how to undertake the work, are not subject to company rules and discipline and they invoice for the work and pay their own tax and national insurance rather than being paid through the payroll.
For the statutory rights applicable to employees, workers and the self-employed see link to table. If you are in any doubt you should seek advice as this is a complex area of law.
Other Types of Employment
There are two types of scheme; Traditional Apprenticeships and Government-sponsored Apprenticeships. In both kinds the apprentice is an employee of the company and should be provided with a Written Statement of Particulars within two months of the apprenticeship commencing. They are subject to the same rules regarding disciplinary and grievances (although dismissal, regardless of length of service is more difficult see below). Apprentices are entitled to be paid the National Minimum Wage if they are 19 or over and have completed the first year of their apprenticeship.
These are far less common now and are where the employer (the master) undertakes to train the apprentice in a particular industry or skill. The apprentice agrees to learn his or her trade and obey the master. These types of apprenticeships are a very special type of employment contract and it is difficult for the employer to dismiss the apprentice during the course of the apprenticeship. However, they may be dismissed if the apprentice continually does not carry out their duties. This needs to be more than the occasional neglect of duties for the dismissal to be fair, and is regardless of length of service.
If the employer cannot complete your apprenticeship training, you will be entitled to pay and benefits up to the end of your apprenticeship period, as well as damages for the employer’s failure to complete the apprenticeship.
The apprentice will not be automatically dismissed at the end of the apprenticeship period as once the training is complete they may be entitled to a position in the organisation in the trade that they have trained in. It is also not normally possible to make an apprentice redundant but this may happen in certain circumstances such as a fundamental reorganisation of the organisation or if the organisation ceases trading.
Government Sponsored Modern Apprenticeships
A Government Modern Apprenticeship (these are the most common) rather than a traditional apprenticeship will have different contractual rights for the apprentice.
The employer must provide on-the-job training and experience, with local learning providers providing off-the-job training (normally at college, on a day-release basis). The apprentice should have an apprenticeship plan drawn up with the employer, detailing the training activities and the qualifications to be gained.
If the employer is unable to allow the apprentice to complete the training, he should do all he can to find you another employer. In this case, the apprentice may claim for breach of contract and compensation for the remainder of their training period, or compensation until the date another training provider is found to enable the apprentice to continue training.
If the apprentice has over two years’ service, they will be entitled to redundancy pay, even though an alternative employer may be found to allow them to complete their training. However, the apprentice is not redundant when the apprenticeship simply comes to an end and neither is it a dismissal for unfair dismissal claims. However, whilst there is no obligation for the employer to provide work for the apprentice at the end of the apprenticeship period, but it is important that he is reasonable in this respect. Where there is a suitable vacancy, the apprentice should be offered this position. If this is not done, then the apprentice may claim unfair dismissal providing they have the qualifying service with the employer.
Young workers are those who are over the compulsory minimum school leaving age but have not yet reached the age of 18. A child is defined as someone who is under the compulsory minimum school leaving age. The date on which a child is eligible to leave full-time education varies in England and Wales, Scotland and Northern Ireland. Employers must ensure that they comply with the law relating to children and young people when recruiting young persons. Despite the name, they may be employees if they meet the criteria above.
No child may be employed in any industrial undertaking, in any mine or quarry, or in construction or demolition work, or in any premises, eg a factory or workshop, in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, broken up or demolished, or in which materials are transformed.
Within seven days of having employed a child, an employer must apply to the relevant local education authority for an Employment Certificate. The authority will forward an application form and a copy of its bylaws on the employment of children.
It is the employer’s responsibility to inform the parents or guardians of any health and safety risks associated with the type of work in which the child is employed and the steps taken to minimise those risks.
Home workers may be on any of the above contracts. It is advisable to establish a policy setting out the employer’s expectations and the employee’s obligations when working from home. The home worker should be made aware of and comply with standards and rules regarding:
- segregating work from domestic duties
- working only the hours which might be expected of an office worker
- adhering to the employer’s guidelines when working on display screen equipment
- reporting all accidents, hazards and near misses to Health and Safety immediately
- maintaining high standards of housekeeping
What can I claim?
The most important things you can claim are:
- complaints as to statements of terms of employment (if part of another claim)
- unauthorised deductions from wages, time off work
- maternity, paternity, adoption and parental leave rights
- maternity, paternity, adoption and parental leave rights
- redundancy payments
- rights on the insolvency of an employer and detrimental treatment on various grounds
The Equality Act 2010, which prohibits discrimination on a range of grounds
These are set out in more detail in the table below.
|Written statement of employment particulars||Yes|
|Itemised pay statement||Yes|
|Right to the National Minimum Wage||Yes||Yes|
|Protection against unlawful deductions from wages||Yes||Yes|
|Protection for making a protected disclosure-Whistleblowing||Yes||Yes|
|Protection of acquired rights on the transfer of an undertaking||Yes|
|Right not to be discriminated against on grounds of sex (including pregnancy and maternity), race, disability, religion or belief, sexual orientation, gender re-assignment and age||Yes||Yes||Yes|
|Right under Working Time Regulations to holidays, rest breaks and maximum weekly working time||Yes||Yes|
|Right for part-time workers not to be treated less favourably than comparable full time workers||Yes||Yes|
|· to look for work or training in redundancies||Yes|
|· for pension trustees||Yes|
|· for employee representatives||Yes|
|· for young person for study or training||Yes|
|· for members of a European Works Council||Yes|
|Maternity, Adoption and Paternity Rights:||Yes|
|· Leave and|
|Right to request time off for training||Yes|
|Right to request flexible working||Yes|
|· Not to be unfairly dismissed|
|· Not to be unfairly selected for redundancy|
|· Written statement for reasons for dismissal|
|Right to a minimum period of notice|
|Protection against detriment for exercising rights in respect of:||Yes|
|health and safety cases|
|trustees of occupational pensions schemes|
|time off work for study and training|
|leave for family and domestic reasons|
|trade union membership|
|· European works council|
|Protection against detriment for exercising rights in respect of:||Yes|
|· working time cases|
|· protected disclosures|
|· National Minimum Wage|
|· part-time work|
|· right to be accompanied|
|· Right to be accompanied at formal meetings (not redundancy consultation meetings||Yes||Yes|
|Right to be informed and consulted through representatives about collective redundancies||Yes||Yes|
|Right to a redundancy payment||Yes|
|Right for an insolvency payment||Yes|
|Right to belong or not to belong to a trade union||Yes||Yes|
|Time off for carrying out trade union duties||Yes|
|Time off for union activities||Yes|
|Right not to suffer deductions for unauthorised union subscriptions||Yes|
|Time off for union learning representatives||Yes|
|Right for fixed-term employees not to be treated less favourably than comparable employees in permanent employment||Yes|
Tribunals can hear claims for breach of contract but only for claims which arise or are outstanding at the termination of the employment. This could be for example incorrect notice or outstanding pay for holiday. However, claims for damages are limited to £25,000 in Tribunals so for larger claims the claimant may wish to consider taking action in the civil courts. They must choose one or the other route as the balance cannot be claimed in the civil court for claims heard in Tribunal.
Should I claim?
You need to balance the time, effort and costs against your possible outcome. Taking a claim to a Tribunal is time consuming as there is a lot of paperwork and it can be difficult emotionally. That must be weighed against your sense of grievance and what you may benefit from doing so.
Things to consider
- How do you feel about going to a tribunal?
- Did you admit to the allegations? In which case you must rely on dismissal not being a reasonable sanction or a procedural mistake by your employer.
- Do you have enough evidence to support your claim?
- Do you feel able to present your case yourself if you if you cannot afford to pay a Solicitor or Barrister fees and you do not have legal cover from your home contents or car insurance?
- If you’re a member of a union, will they give you financial assistance and other help to prepare the claim?
- If you can’t get help from a representative, will you be able to give enough time and commitment to prepare the claim yourself?
- If you were to win, is your employer likely to pay you what you’re owed?
- Making a claim and attending a hearing is time consuming and can be very stressful. Could you cope with this?
The evidence you will need will vary with the claim you are making. To support claims where you are owed money you will need documents such as wage pay slips, redundancy or holiday payments, notice pay and letters of dismissal or other important meetings. You can ask the employer to provide these if you do not have them as part of the procedure called disclosure.
Discrimination claims are difficult to prove as they can be one person’s word against another’s and you need to have evidence that you have been treated differently to another and to your disadvantage.
It is important that your story is consistent and that you tell the truth as if it is not, or you get caught out in the lie, the tribunal will tend to not believe your side of events.
Did your Employer follow a fair procedure?
For discipline dismissals:
- Investigate the issues
- Invite you to a disciplinary hearing giving you
- Details of the allegations and the evidence they have to base them on
- Offer you the right to be accompanied by a work colleague or union representative
- Give you enough time to prepare
- Have a reasonable belief that you were guilty; they do not need absolute proof beyond all reasonable doubt
- Were you given the opportunity to appeal the decision
For capability dismissals:
- Invite you to a meeting to discuss where your performance is falling short
- Offer you the right to be accompanied by a work colleague or union representative at the meeting
- Set clear goals for improvement
- Give any necessary training
- Give time to improve
- Monitor the position
- Were you given the opportunity to appeal the decision
For Redundancy dismissals:
- Consult with you and/or representatives (for 20 or more redundancies at one place of work) before the decision was taken to make redundancies by
- Asking for your suggestions and exploring how to avoid or reduce the redundancies
- Discussing suitable alternative vacancies
- Explain the trial period if there is an alternative role
- Explaining what you are entitled to by way of redundancy pay and notice
- For individual consultation meetings, offer you the right to be accompanied by a work colleague or union representative
Should I settle outside the employment tribunal?
There are lots of reasons why you might want to settle your case outside the employment tribunal. By settling, you avoid the stress and worry of having to go to the hearing. You may also be able to agree a settlement that is better than what you might get from the tribunal. For example, you may be able to agree a reference as part of the settlement that could have more value to you in the long run than any money. If you’re unsure about the strength of your case, you may prefer the certainty of getting something, rather than risk losing in the tribunal. By getting your employer to pay something, it is a form of victory.
What will I get if I win?
No-one can be certain that you will win or how much compensation you will get as it depends on each tribunal. The Basic Award is a fixed formula but the Compensatory Award varies. An advisor or representative may be able to give you an idea based on the merits of your particular case and using their experience. You may want your old job back if you have been dismissed but this does not often happen and employers can refuse if they are prepared to pay the penalty. If you win, you may be able to negotiate on other issues such as a reference. One thing to remember is that very high figures for compensation are very rare and often have very specific facts.
For the basic award the tribunal gives:-
- half a week’s gross basic pay for each year of service in which you were below the age of 22
- one week’s gross basic pay for each completed year of service between the ages of 22-41
- one and a half weeks’ gross basic pay for each year of service over the age of 41.
- The maximum number of years which can be compensated is 20. The maximum amount of weekly gross pay which can be taken into account is capped by the Government and this changes each year. Any money earned above this sum is disregarded.
The compensatory award is to compensate for loss of earnings, including future loss of earnings. This can include net pay, benefits, overtime and bonuses. It can also include loss of pension rights and loss of statutory rights (such the right to claim unfair dismissal). The amount of any Jobseeker’s Allowance or Income Support the employee has received since the dismissal will be deducted from the award. For the current maximum compensatory award for loss suffered following a dismissal. This can be reduced by the tribunal if they feel you have been at fault too and contributed to your dismissal.
How do I claim?
Before you apply to the tribunal you should see if there is another way to solve the problem, eg, using a grievance procedure.
If this does not resolve the problem you must contact ACAS (Advisory, Conciliation and Arbitration Service) about their free ‘Early Conciliation’ service before applying to the tribunal. There are a few rare exceptions which ACAS will advise you of if they apply in your case.
You must tell them you are going to make a claim but you do not have to use the service and you can withdraw from the conciliation at any time. This is a free service and anything you say to ACAS will be confidential.
To contact ACAS
Telephone: 0300 123 1100
Textphone: 18001 030 0123 1100
Monday to Friday, 8am to 8pm
Saturday, 9am to 1pm
Once notified, an ACAS Early Conciliation Support Officer will you contact you and your employer and if you and your employer agree to conciliation your case will be passed to a Conciliator. If the problem can be resolved it saves the time and stress of a tribunal. You may also be able to negotiate on things such as a reference which you would not in a tribunal. Your employer may also seek early conciliation if they think you are going to make a claim. You may choose not to have conciliation where you wish the matters to be on public record for example in cases where restoring your reputation is important.
If everyone agrees to conciliation ACAS have 1 month to try and resolve the dispute. If conciliation doesn’t work, or you decide you do not want conciliation, you will then get a certificate from ACAS which you will need for your employment tribunal claim. You can withdraw at any time during the process. A tribunal will not take into account whether you have chosen to conciliate or not.
If conciliation is successful ACAS will issue what is a called a COT3 agreement. If it is not successful, ACAS will issue a certificate and you can proceed with your claim. You must include the certificate number on your ET1 claim form (see below) or the employment tribunal will reject it.
The deadline for applying to the tribunal is extended by the amount of time you spend in conciliation (eg, if you spend 2 weeks in conciliation, the deadline for applying to the tribunal is 2 weeks later.) You’ll always get at least 1 month to apply to the tribunal.
These used to be called compromise agreements. In law, you cannot give up your right to make a claim unless you have appropriate advice. ACAS conciliation is one way, called a COT3, and and settlement agreements. In a settlement agreement you must have independent advice which could be a qualified lawyer trade union official or a certified adviser from an advice centre.
Apply to the tribunal
You can Apply online
You can also fill in a claim form and post it to:
Employment Tribunal Central Office (England and Wales)
PO Box 10218
Employment Tribunals Central Office (Scotland)
PO Box 27105
The tribunal can deal with a wide range of claims, eg:
- Unfair dismissal
- Redundancy rights
- Discrimination, including Family Rights and Equal Pay
- Unfair deductions from your pay
- Time off and working time including holidays
- Trade Union rights
- Business Transfers
Making a tribunal cliam
If you decide to make a claim (known as an ET1) to a Tribunal your employer should respond to your claim (known as an ET3), giving their side of the case, within 28 days of getting your claim form.
You need to decide what claim or claims you are making, for example unfair dismissal and/ or discrimination, (see the table above)
Schedule of Loss
If you do decide to make a claim you also will need to prepare a statement of what you are claiming. This is called a Schedule of loss. You can also use it if you’re negotiating to settle your case with your employer before the tribunal hearing.
You need to claim separately for the things you are claiming. For example you will need a section for unpaid wages, compensation for unfair dismissal or injury to feelings. If your case includes claiming back money taken from your wages, or holiday or notice pay your employer owes you, you should put the actual amount of money you’re owed in the schedule of loss. If your case is about unfair dismissal or discrimination you may also want to claim for compensation. This is made up of two parts, called the basic award and the compensatory award, see above. If your case is about discrimination you may also be able to get compensation for injury to feelings.
Step One- Completing an ET1 Claim Form
It is very important that your ET1 has sufficient information to support your claims. See Pre-hearing preparation below You must include all the types of claim (Heads of Claim) you want to make in the ET1 as it can be difficult to add other complaints at a later stage and the employer or his representative can object and the tribunal will then decide if it can be included. You might want to get help in dealing with your claim. You could ask a friend or colleague or an organisation but if you do it all yourself the Tribunal is used to this and will help you.
Who can help?
There are two types of help, an adviser and a representative. An adviser is someone who can help you with your case behind the scenes. Usually, they won’t talk directly to your employer or formally represent you. A representative is someone who will be named on the tribunal claim form. They will take responsibility for the preparation of your case, liaise with the employer’s side and act as your representative and speak for you in the tribunal. You may still have to speak at the tribunal to give your evidence but the normal practice these days is for the tribunal to read witness statements rather than have them read out. You must tell your representative if you are unavailable for any reason for example if you are going away on holiday.
Where do I find a Representative?
Legal Aid– You cannot get legal aid for employment cases unless it is a claim for discrimination.
No win no fee -Some solicitors will also take on a strong case on this basis. This means that if you win or settle your case, you will normally pay up to a third of your compensation to your solicitor. If you’re paying for a solicitor in this way, make sure you check your agreement with them carefully at the beginning, so that you’re clear about what you’re paying.
The Bar Pro Bono Unit may be able to help you with legal advice and representation by trying to find a barrister to work on your case. They provide help to people who can’t afford to pay legal fees and who can’t get legal aid. To get help from the Bar Pro Bono Unit you have to be referred to them by an advice agency. You can find out more information about the Bar Pro Bono Unit and how to get a referral to them by contacting them via their website at: www.barprobono.org.uk.
Trade Unions -If you’re a member of a trade union, you should contact them to see if they can help with your problem at work, before trying to find help elsewhere. There might be a union representative in your workplace, or you might need to contact your local branch. The Union may be prepared to act as an advisor only or to act as a representative.
Some insurance policies include legal cover. This means you might be able to get a solicitor, and sometimes specialist representation, paid for by your insurance company. Check your household insurance, car insurance and any other policies you have, including policies attached to credit cards and mobile phones, or contact your insurance company to find out if you’re covered.
Paying your own solicitor
Make sure you check carefully what the solicitor’s fees are before you agree to use them.
The Law Society is the representative body for solicitors and may be able to help you find a private solicitor in your area. You can search their online database of solicitors and other legal advisers at:www.lawsociety.org.uk.
You can find a legal adviser on the Legal Adviser Directory. Go to the Ministry of Justice website atwww.justice.gov.uk.
A Law Centre may be able to offer you free, independent legal advice and representation. They focus on providing legal advice to people who find it difficult to get advice or who are experiencing discrimination. They are funded by the Legal Services Commission and local councils.
You should contact your local Law Centre to see if they’re able to help you. You can find their contact details by searching online at: www.lawcentres.org.uk
There may be independent or not-for-profit advice agencies in your area that can help with your employment problem. You can find out what’s available in your area by searching on the Community Legal Advice website at: www.communitylegaladvice.org.uk. Or you can look in your phone book.
If you can’t afford to pay for a solicitor and can’t get legal aid, LawWorks may be able to help with your employment case. They provide legal advice clinics, and try to find a solicitor to provide free help with mediation and casework. You can apply to LawWorks directly. You can find out more information about their services and how to apply by contacting them on:
Telephone: 0207 929 5601
E-mail: via their website at www.lawworks.org.uk
Advisory, Conciliation and Arbitration Service (Acas)
Acas can provide confidential and independent advice to help you sort out your employment dispute. You can get advice by calling their helpline or looking on their website.
Telephone: 0300 123 1100
Text Relay: 18001 0300 123 1100
Equality Advisory Support Service (EASS)
If you have experienced discrimination, you can get help from the EASS discrimination helpline.
More about the EASS helpline
Equality and Human Rights Commission (EHRC)
You can find useful information about discrimination on the EHRC website atwww.equalityhumanrights.com.
Employment Tribunal Public Enquiry Line
The Employment Tribunal Public Enquiry Line can provide answers to queries, and explain how the employment tribunal system works. They don’t give legal advice. More details are available on the Ministry of Justice website.
Telephone: 0845 795 9775
Minicom: 0845 757 3722
This is the government’s information website. It gives information about your rights at work and how to resolve a problem at work.
Employment Tribunal information
You can find more information about employment tribunals and how to make a claim to a tribunal from the Ministry of Justice website.
Website: www www.justice.gov.uk
Citizens Advice Bureau
If you don’t have a representative, you might be able to get advice on your case preparation from the Citizens Advice Bureau. To search for details of your nearest CAB, including those which give advice by email, click on nearest CAB.
Free Representation Unit (FRU)
FRU can provide advice, help with case preparation and representation in employment tribunal cases. To get help from FRU you have to have started your case and be referred to them by one of their referral agencies. You can find out more information about FRU and how to get a referral to them by contacting them on:
Tel: 020 7611 9555 Fax: 020 7611 9551
Website: www.thefru.org.uk (Email: available through a form on the website)
Who does what?
If you have an adviser rather than a representative, the preparation of your case is your responsibility, but your adviser is there to help you along the way. You must keep in contact with your adviser, particularly when you receive anything from the tribunal. Don’t put off contacting your adviser about any letters, emails or phone calls you get about your case, for example from the tribunal or your employer’s representative. Sometimes you have to do things within a time limit in response to these. Make sure you have given anyone assisting you all the information you have, including copies of documents, names of witnesses and your evidence (your story).
If you have a representative, don’t keep information to yourself for any reason, if there is a problem your representative needs to know in advance so they can prepare a defence. If you remember something later that you haven’t mentioned before, make sure you tell your representative about this as soon as you can.
You should be aware that an adviser or representative may have to withdraw from your case. This can be for different reasons. For example, it may be because it’s easier for a busy representative to prepare cases when they are on the record, or that they can only see how strong your case is after certain procedures are done. Your adviser or representative will talk about this with you if the situation comes up.
If there’s something you’re not clear about, you can contact the employment tribunals public enquiry line. They can’t give you legal advice, but they can help with queries and explain how the tribunal system works. Telephone 0300 123 1024 (Minicom: 01509 221564).
To find out more about making a claim to an employment tribunal, see Employment tribunals.
Step Two- The Employer’s response; the ET3
If your employer does not reply by completing an ET3, an employment judge may decide on your case without you having to go to a hearing.
If your employer does respond you or your representative will receive a copy and there will be a hearing to decide on your case.
As part of the preparation of your case you might have a preliminary hearing at which case management orders may be made. The agenda will be sent to you in advance for agreement if possible.
A preliminary hearing is an informal hearing before your main hearing. It might be done in person, or over the phone. Both you and your employer, or your representatives, and the tribunal judge will attend.
The discussion will depend on the complexity if your case but they can decide on how the case should be run, and what the timetable for the case should be. A meeting is often held in more complicated cases like discrimination cases. It will decide things like:
- what the issues in the case are that the tribunal must decide and in some cases if the claim meets the criteria to go to tribunal eg are you an employee, were you dismissed, is the claim in time?
- what orders should be made about disclosure of documents
- amendments to the claim or if it should be struck out or a deposit required
- witness statements and when they should be exchanged
- how long the full hearing should be, and when it should happen and the timetable
- explore the possibility of settlement or mediation
Case Management Orders
These are instructions as to how the proceedings should be conducted as set out above. These may cover for example the date of a preliminary or final hearing or directions to the employer and employee. The Judge can make orders to make reluctant witnesses attend.
It is very important to comply with the orders the Judge has set out by the given dates. Failure to do so could result in your claim being struck out, or in costs being awarded against you if you have caused the employer to incur unnecessary costs.
Always read any letters from the tribunal carefully. If you’re not sure what the tribunal is saying, get advice from your adviser or representative, or call the employment tribunal public enquiry line. If you have a representative, they should make sure that directions and orders from the tribunal are carried out.
Step 3- The hearing date
You will get a letter giving you details of the hearing, where the tribunal will make a final decision or ‘judgment’ on your case. When you get a date for your hearing, you should contact your adviser immediately. If you leave it until just before the hearing, your adviser may not be able to help you make your final preparations. A representative will have been notified directly.
If you have a problem with the date you must let the tribunal or your representative know with the reason immediately. Tribunals ware very reluctant to defer dates once set and will only do so if there is a very good reason. Further information can be obtained from http://www.justice.gov.uk/tribunals/employment
Step 4- Pre–hearing preparation
It is no longer enough to just tell the tribunal your story as they must follow legal tests in making their decision. You will need to gather as much evidence you can. Make sure you have written down everything that has happened in relation to your problem with as many dates as you, or others, can remember. It may be some months before your tribunal hearing, so a written account of what happened can help keep things clear in your mind and remind you nearer the time. It can also be useful for filling in the tribunal complaint form (ET1). If you kept a diary of what happened at work, this can also be helpful and may be important evidence in the hearing. If you have an adviser or representative, give them your written account of what happened.
Paperwork is very important and you should get together:
- anything you’ve written down about what’s happened
- your contract, if you’ve got one, and any other documents about your employment like pay slips or salary details
- any letters, emails and mobile phone texts from your employer or any other people you work with about the situation
- if your case includes a claim for loss of earnings you should also bring evidence that you’ve been applying for other jobs
- anything else that concerns your employment.
- your witness statement
What’s a witness statement?
This is a written version of the events leading to your claim and it will form a very important part of your evidence to the tribunal. If you intend to bring witnesses to speak on your behalf they will also need to produce a witness statement. The statements should only include what the witness heard or saw not what other people have told them as that is hearsay and of very limited value. Tribunals now vary in the way they treat witness statements; the traditional way is for witnesses to give evidence by reading out a written witness statement that has been prepared beforehand. Increasingly, tribunals will read the witness statements in private before the start of the proceedings as this saves time.
Remember, the most important evidence in your case is the evidence that you give yourself.
What do I put in my witness statement?
If you have a representative or adviser, they will help you prepare your witness statement to make sure your evidence is properly organised. They should check with you that you’re happy that it’s accurate. Make sure it is the sort of language you usually use and that you understand all the words used in case you have to read it out in tribunal and get asked questions about it.
These statements should include all the relevant facts about what you say has happened as tribunals may not allow you to add to your story at the tribunal, but avoid over long statements of many pages of background information which is not directly relevant to the complaint. You will need to mention recent previous incidents which show a trend in the behaviour of your employer, particularly for cases of discrimination, but do not dredge up unrelated past incidents from years prior to the current problem.
It should be as clear and logical as possible and going through what happened from start to finish is usually best. You should use the full names of anyone you mention. If there was any bad language used during the situation your case is about – including by you – you should put this in. Don’t be embarrassed by this as tribunals are used to hearing bad language in cases.
It’s a good idea to practise reading your statement. It should be typed up and sent to your employer or their representative before the hearing. They should do the same and let you have their witness statements. The tribunal will usually make an order for the date when witness statements should be exchanged. It’s a good idea to agree a date with the employer for when you both send each other witness statements so that they don’t see your statement before they write theirs.
Can I ask work colleagues to be witnesses?
You can ask work colleagues to be witnesses, but make sure the person you’re asking has something relevant to say. For example, if they witnessed what happened leading up to your dismissal, their evidence may be useful if the employer says something different happened. But don’t take a character witness. The tribunal wants to know about what happened, not about whether you’re a nice person.
Also make sure that anyone you ask to be a witness can come to the hearing. The tribunal will usually give little weight to a statement from someone who isn’t there, because they can’t question them about their statement. So a witness statement from someone who can’t come to the hearing isn’t worth much.
Getting witnesses to attend a tribunal can be difficult, particularly if they still work for the employer. Witnesses often promise to come but then get cold feet before the hearing and don’t turn up. Tribunals are aware that colleagues may not want to risk their job and that witnesses for the employer may slant their evidence in favour of their employer. If someone is crucial to your case it is possible to get an order from the tribunal to make a witness attend the hearing.
Don’t think that a case is won or lost by the number of witnesses each side has. It is quite normal for the employee to have no witnesses and the employer to have many. The number of witnesses is not relevant to the outcome and many employees win their case without having any witnesses on their side.
Exchange of witness statements
It is usual for the tribunal to order you and your employer to exchange your witness statements one or two weeks before the hearing so that each side can see what the other is going to say and prepare questions for cross-examination. The tribunal will not allow you to add anything or change your evidence once the witness statements have been exchanged, unless there is a very good reason, so it’s important to get your statement right.
Even if you don’t think it’s important, make sure you get everything together as it may matter later as things develop. Show it all to your adviser or representative if you have one. Don’t write any comments on these documents, as they may have to be photocopied for the tribunal. If you want to make notes or comments, do this on a separate piece of paper or spare copy.
If you are preparing your own case you should set up a file and keep everything in date order. There can be lots of paperwork involved in a case. It’s easy to get into a muddle if you don’t have a system for keeping your papers in order.
Usually the Judge will ask your employer to bring the relevant papers and to prepare the bundle because they should have the necessary documents, including those that are internal to the organisation. You may need to speak with your employer or their representative before the hearing to agree who is bringing what papers and to confirm they will produce all the bundles.
What is a Bundle?
A bundle is the file of documents that the tribunal will need to look at during the hearing. These documents are the evidence in your case. Usually your employer will produce the bundle, partly because they should have all the documents that need to be in it and they have better photocopying facilities. If you have a case management discussion, you may want to ask for an order for your employer to produce the bundle.
It is helpful if you can agree with your employer what documents should be put in the bundle but sometimes there can be disagreements about this. If you cannot agree to a joint bundle then two bundles may be produced, one by you and one by your employer. Tribunals don’t like two bundles because it can make following the evidence difficult, so try to agree documents with your employer if you can.
If you have a representative, they will produce the bundle if they need to. If you don’t have a representative and you need to produce the bundle, you should include in it all the documents that are important to your case, and that you want to refer to at the hearing. There is a standard way that the bundle should be put together. Keep all documents relating to the same issue together in date order if possible for example all the letters and notes of meetings relating to disciplinary action from investigation to dismissal and appeal in one section. The ET1 and ET3 is usually at the front with any case management directions and any reference documents such as policies such as disciplinary procedures or pay scales. All pages must be numbered sequentially at the bottom of the page from the start of the bundle to the end.
If you are producing the bundle, you need six copies – one for each member of the tribunal panel, one for the employer, one for you and one for the witnesses.
Preparing your Cross Examination
If you do not have a representative you will need to conduct the case yourself. This means that you will need to ask questions of the employer’s witnesses. The purpose of the questions is to clarify anything which gives a different version of events to what you think happened. These could be either between what the witnesses are saying, or what the witnesses and the documents are saying.
You should go through the witness statements and mark out anything you disagree with, and then try and find documents in the bundle which support your version. You need to make a list of questions and note of the paragraph number in the witness statement to which it refers and the page number of the document in the bundle which backs up your evidence or contradicts theirs. You can use post it notes and highlighter on your own copy of the documents once they have been photocopied.
The point of asking these questions is to show the tribunal more evidence to back-up your case. You don’t have to get the witness to admit they’re wrong.
The first day of the tribunal hearing
You should aim to arrive at the employment tribunal at least half an hour before the hearing starts. Build in extra time for travelling in case of transport delays; tribunals are tight for time and do not like it if a party (you or your employer) is late. If you are going to be late call the tribunal to tell them and explain why; make sure you have their telephone number with you.
What happens when I arrive at the employment tribunal?
When you arrive a clerk will check you in at reception. They will usually ask if you have a representative, any witnesses and any documents for the tribunal. If you have any special needs you should mention them to the clerk who will pass them on to the Judge.
You will then be shown to the employee or claimant’s waiting room. You will be in a separate waiting room to your employer and the clerk will come and get you when the tribunal is ready for the hearing. Don’t forget that an employment tribunal is usually a public hearing, so there might be other people in the room when you go through for the hearing.
What’s a last minute settlement?
Before the hearing the employer’s representative may come to your waiting room to discuss the case, and try to make a last minute settlement. If you have a representative, they will handle this conversation. Last minute settlements in the tribunal are quite common and even at this late stage you can agree a settlement rather than go through with the hearing.
If you don’t have a representative, negotiating a last minute settlement can be difficult. If you can, you should be prepared for this. Before you go to the tribunal, think about what you would want from a last minute settlement if your employer’s representative wants to discuss this. You should factor in the cost to the employer of going ahead with the case. How many days is it listed for, do they have a barrister as well as a solicitor, are there a lot of managers as witnesses; their time is valuable and they are missing work.
Your employer’s representatives might try to put pressure on you to withdraw your case or to settle. Try not to be intimidated by them and ask them to explain anything you don’t understand. Don’t be bullied into agreeing to something that you’re not happy with, and try to use the situation to your advantage. If you do agree a last-minute settlement, the tribunal will often offer to record the terms of the settlement so that you have a record of the deal. You will then be able to enforce it if the employer doesn’t pay up.
What should I wear?
The employment tribunal is a public, legal hearing, so try to dress as smartly as you can. You should not go to too much trouble to dress up; fancy evening wear is not suitable. Formal clothes, if you have them, are suitable but clean, well pressed clothes are fine if you do not. You should not wear casual clothes like jeans and trainers if possible. Have clean hair and don’t chew gum and switch off your mobile phone when you go into the hearing. You shouldn’t take food or drink into the tribunal room unless you have special health reasons to do so in which case mention this to the clerk.
Who can I bring with me?
You can bring friends or family with you to support you if you want to. They will be able to sit behind you in the tribunal room but they must be quiet and never interrupt the tribunal.
What are the rules of behaviour?
You should address the employment tribunal panel members as either sir or madam.
Only the appointed representative can speak to the panel so if you have a representative or a friend is speaking for you and you need to speak to them or give them information during the case, write down what you want to say on a piece of paper and pass it to them.
It’s important that you understand what’s going on, and you’re entitled to ask if you don’t. So if you are representing yourself and the tribunal panel or your employer’s representative says something that you don’t understand, ask them to explain what they mean. You can take the time you need to understand things and answer a question.
Sometimes people feel scared or daunted by how their employer’s representative is treating them. It’s a usual tactic for the employer’s representative to try to intimidate you. If you are not represented Judges generally do not like or permit this but if the Judge does not intervene and you’re really unhappy with how you’re being treated you should raise this with the judge. You should note that an employer’s representative who behaves in an aggressive manner does not help their case with the tribunal and the good ones know this and often try to help an unrepresented employee.
The tribunal panel
The Judge may sit alone or there may be three members of the tribunal (this is referred to as a tribunal panel) who will decide on your case or depending on what you have claimed. Any claims involving discrimination always have three panel members. The person in the centre of a panel is an employment judge who is legally qualified and will run the proceedings. In addition there is one person representing employer’s organisations and another person representing employee’s organisations.
The panel usually sit at a slightly raised desk. The atmosphere is like a court but slightly less formal. For example, nobody wears wigs or gowns, but evidence is taken on oath and there are rules about what happens and who speaks when. If you are not represented the Judge will explain this to you and tell you what happens next.
Which side goes first?
At the beginning of the tribunal hearing, the panel members will introduce themselves. The judge will decide which side goes first. In an unfair dismissal claim the employer usually goes first. In a discrimination claim the employee usually goes first. Sometimes each side will be invited to make an opening statement to the tribunal about their case, although this doesn’t happen very often and usually only if both sides are represented.
If you go first, you will usually start by reading out your witness statement. After your statement has been read, either by you or the tribunal, the employer or their representative can ask you questions about what you have said. This is called cross-examination. You should make sure you understand the questions and answer them honestly. Make sure you answer the question asked and don’t elaborate too much. The tribunal judge may also ask questions at any time and will often take over the running of the hearing. Sometimes being cross-examined can be difficult because your employer is trying to prove that your case is wrong. You should try to keep calm, take your time and answer honestly, and ask if you don’t understand something. If you can’t remember something say so, do not guess as this could be used to trip you up later.
You might feel angry towards your employer, but take care not to be rude or aggressive, either towards your employer or to any of their witnesses as you might damage your case.
If you have any witnesses they will also be questioned on their statements.
After the employer has finished cross-examination, your representative, if you have one, may ask you or your witnesses a few more questions. This is called re-examination and can only deal with questions asked by the employer so it doesn’t always happen and it generally doesn’t last long.
The Employer’s Evidence
It’s then your employer’s turn to call their witnesses to read out their statements or the tribunal may read them in private. After they have been read, you or your representative can ask the witnesses questions in cross-examination.
If you don’t have a representative, the judge will ask if you’ve got any questions you’d like to ask the witnesses. This is your chance to ask them the questions you prepared earlier from their statements. You can also ask them about anything that you were cross examined on with which you disagree. It’s important to question anything the witness has said that you don’t agree with in their statement. If there are differences in the evidence, it’s often a good idea to get one witness to confirm very clearly that what they have said is true. Then ask them to look at the evidence which is different, and ask them to comment on it. If what they are saying is definitely true, then the evidence in the document or the other witnesses statement must be false. This calls into question the reliability of their evidence.
Once all the witnesses have been cross examined the employer’s representative may have some re-examination questions.
After all the evidence has been heard, the tribunal will usually ask if you’d like to make some more comments. These are called closing submissions. It’s a good idea to prepare something to say in advance. A submission gives you an opportunity to sum up the evidence that the tribunal has heard, make legal arguments and explain why you think the tribunal should find in your favour.
If you don’t understand the law, it’s best not to attempt to make complicated legal points. Most cases don’t involve difficult or unusual points of law, and tribunals will get irritated if you spend a lot of time talking about irrelevant issues. Presenting the facts as clearly as possible is the most important thing you need to do.
When will I be told the decision?
After the closing submissions, the tribunal panel will tell you what happens next. They will need to make their decision. Sometimes they do this on the day, and other times they will take more time and send it to you at a later date.
If they are going to make their decision that day, the tribunal panel will leave the room to decide and tell you their decision when they come back. If they take more time, they will send the decision to you in writing later.
If you win your case
If you have won, the tribunal might take a break to allow you and your employer to try to agree a settlement. It can be good for both sides to agree a settlement, even at this stage. For example, you might be able to use the fact that you’ve won to get your employer to agree to give you a reference, as well as some money.
But if you can’t reach a settlement, you can go back to the tribunal for them to make the compensation award. This might happen on the same day as your hearing, or it might be a separate hearing at a later date.
If you win your case, the tribunal can order your employer to:
- pay you compensation
- pay you any tribunal fees you’ve paid
- improve your working conditions
- give you your job back, if appropriate (you should indicate this on your ET1 claim form)
If you are given compensation the amount you get can depend on:
- the type of case
- your age, length of service, and salary
Usually there are set limits to the amount you can get. However, in cases of discrimination, there is no limit.
If your employer is ordered to re-employ you and doesn’t, or fails to obey any other order, the tribunal can force them to pay you extra compensation.
If the employment tribunal decides you should get compensation, they will do the sums and make an order for how much your employer should pay you, and when this should be paid by.
Your employer should then send you or your representative a cheque.
However, it’s possible that your employer will apply for either a review of the decision or make an appeal. This means that they might ask for the tribunal to look at their decision again, or for the case to be looked at by a higher court called the employment appeal tribunal. If this happens, it might take a long time for the case to be finished.
Cases that go to the employment appeal tribunal can get very complicated and involve difficult legal arguments. If you’re in this situation, you should try to get advice.
You can get advice from a Citizens Advice Bureau. To search for details of your nearest CAB, including those which give email advice, click on http://www.citizensadvice.org.uk/index/getadvice
Can I appeal if I lose my employment tribunal case?
If you lose your employment tribunal case and you have a representative, they will advise you on whether you can ask for the case to be looked at again, or whether you can appeal.
You can only appeal if there was a problem with a point of law in your case. Usually, you can’t appeal just to challenge a decision you’re not happy with. So it’s quite rare for cases to be appealed. And of those cases which do appeal, only a very small number are actually changed.
Sometimes, it can be difficult to accept the tribunal’s decision if it’s gone against you. If you’re not happy with a decision, and you don’t have a representative, you’ll need to get advice if you want to ask for your case to be looked at again, or you want to appeal. This may mean that you need to see a solicitor as this is a specialised area of advice.
If you want to appeal, you must have the full written reasons for the tribunal’s judgment. If the judgment was given in person, you can ask for full written reasons to be sent to you at that time. If the judgment was sent to you in the post after the hearing and the reasons weren’t attached, you must make sure you ask for the reasons within 14 days. You must put in your appeal within 42 days of the date the written reasons for the judgment were sent out.
Employment Appeal Tribunal
Telephone: 020 7273 1041
Fax: 020 7273 1045
Find out about call charges
Employment Appeal Tribunal
2-6 Salisbury Square
For cases in Scotland
Employment Appeal Tribunal
Telephone: 0131 225 3963
Fax: 0131 220 6694
Find out about call charges
Employment Appeal Tribunal
52 Melville Street
For more information about Appeals see http://www.justice.gov.uk/tribunals/employment-appeals/appeals
What do I do if the employer won’t pay?
Most employers will keep to the terms of the settlement and pay up. A few, though, may delay paying you or even refuse to pay up. Usually, you’ll have to take further action in the courts to get your employer to pay up. In a few situations, you may be able to carry on with your tribunal claim, or start a new claim to get your employer to pay up.
If your employer is refusing to keep to the terms of your settlement, you should try:
- To get advice from your adviser or representative
- If you don’t have an adviser or representative first try contacting your employer to find out why.
- Try an organisation which can help you.
For details of organisations that might be able to help:.
If you’re in England or Wales
Ask the local county court to send an enforcement officer to get the money from your employer. This costs £40.
Fill in an application to enforce an award form, using the guidance notes to help you.
Send the form, with a copy of the tribunal’s decision, to your local county court.
You can also use the Fast Track scheme to send a High Court Enforcement Officer – similar to a bailiff – to demand payment from your employer. This costs £60, which you get back from the employer when they pay. Fill in the Employment Tribunal Fast Track Enforcement form to use this service. Send it to the address on the form.
If you’re in Scotland
Write to the office that heard from your case, asking for an ‘extract of the judgment’. A Sheriff Officer can use this to force the employer to pay.
If you’re due a redundancy payment and your employer hasn’t paid it, call the Redundancy Payments Helpline.
Redundancy Payments Helpline
Telephone: 0845 145 0004
Find out about call charges
For more information about taking court action to force your employer to keep to the terms of a settlement, go to the The Society of Messengers-at-Arms and Sheriff Officers’ website at:www.smaso.org
Do’s and don’t’s
If you have a representative, they will handle most of the items listed below but it is still your responsibility to make sure they do what they do so do keep up with the case and ask them for progress reports.
Before the Tribunal
- DO Make sure that you respond to letters from the Tribunal.
- DO Follow the instructions given by Judge in any directions hearing, particularly ensure you meet the deadline dates.
- DO Keep in touch with your representative if you have one and tell them of any problems as soon as possible.
- DO Contact the tribunal office if you have any problems, eg:
- getting information from the employer
- asking a witness to come to your hearing
- Sudden illness or hospital appointments which might affect preparing your case or attending the tribunal.
- DON’T Ignore telephone calls or letters from the employer or their representative.
- DON’T leave all your preparation to the last minute as you may need to ask the employer for documents or witnesses may need to ask for time off work.
- DO Get enough copies of documents. The tribunal will generally not copy them for you unless it is the odd sheet or two.
During the hearing
- DO Make sure you are not late at the start of the day and also getting back from breaks. Make sure you are back in the waiting room in plenty of time.
- DO Apologise to the judge if you are late, either in the morning or back from breaks.
- DO Let the Judge control the hearing, do not challenge them aggressively or interrupt.
- DO Treat the Judge and the employer’s representative with respect.
- DON’T Lose your temper and never shout or argue.
- DON’T Interrupt when anyone else is speaking
- DO Try and answer the question. Generally lawyers build up the story question by question. Some development of your answer is fine but if there is a lot of background check with the Judge first if it is OK to add to your answer.
- DO Ask the Judge if you have a problem understanding something, or you think something is wrong or untrue. Ask if you could clarify or explain something. Usually if you want to disagree with something said the Judge will either deal with it then or tell you when you should raise it.
- DO make a written note of what you want to say if you have to wait so that you won’t forget later.
- DO Stop if the Judge tells you not to pursue a line of questioning. It will mean that it is not relevant to the legal test in your case and is just wasting time. If you keep making the same mistake you will annoy the panel.
- DO Have you papers organised so that you can find things. Use a system of indexing and the numbered bundle pages. Have cross references to the bundle pages or witness statement paragraphs in your list of questions.
- DO Make a note of anything you want to go back to when any of your witnesses are being questioned.When you are asking Questions in Cross Examination
- DO Ask questions and DON’T make statements. This is very difficult if you are representing yourself as you have lived and breathed your story for a long time. Try to think what questions you would need to ask if you didn’t know the story. Take them to any documents which support your case because they either show that was not true, or contradicts what they are saying.
- DO watch the Judge’s pen or typing. They have to record the hearing in detail so pause to let them catch up in your questions if they are busy recording it. When they stop you can then carry on. Do this and you will endear yourself to the Judge.
- DO remember that a person may be telling the truth as they see it and not necessarily lying.
- DO use this phrase “I put it to you that you did or did not say or do …..” if you completely disagree with something but have no documentary back up. The witness must then specifically deny it on oath and they may trip themselves up later.
- DON’T Interrupt when a witness is speaking
- DON’T ask multiple questions in rapid fire
- DO ask one question at a time and allow the witness to finish before going on to the next question.
This is your chance to challenge anything said during cross examination, such as a question which gives the wrong impression as it is only part of the story.
- DO Raise points you have made a note of during cross examination of your witnesses by the employer or his representative. If you are represented, your representative will put questions to you about your cross examination but if you are not represented it is very difficult to re-examine yourself, not least because you cannot make notes yourself whilst be questioned.
- DO Ask anyone there to support you to note anything they think gave a misleading impression whilst you were being questioned. The Judge may just ask you if there is anything you want to add through all the proceedings.
- DO take your cue from the Judge. Nothing you do to annoy a panel or Judge will affect their interpretation of the facts in law, but sometimes it is a very fine judgement who to believe when there are two stories saying the opposite so if they feel you are a good witness /claimant then it might just get them to land on your side.