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Managing your own Case


Generally, the Employment Tribunal must receive a claim within three months of the employment ending or of the matter being complained about. If the tribunal receives the claim later, it will ask why, sometimes by means of preliminary hearing, and unless there is a very strong reason will not accept it.

In certain circumstances such when an employee writes to you within the original time limit raising a grievance or statutory grievance procedures have to be gone through, these limits will be extended by up to three months.

The tribunal will send you a copy of the claim form (IT1) within five days of receipt together with the booklet "What to do if taken to an Employment Tribunal". It will also send you a Notice of Appearance form (IT3). You have 21 days to reply stating whether you intend to resist or defend the application and your reasons for doing so.

Remember that the form is relatively easy to fill out - make sure you check all of the facts and remember that if you leave it too late, you may lose your right to defend the claim.

Remember too that all internal disciplinary and grievance procedures must be exhausted before bringing a tribunal claim. Tribunals will be able to adjust rates of financial compensation up or down, based on whether or not employees and employers follow proper procedures.

When the tribunal gets your reply, it will send copies to the claimant and Acas, who will offer to conciliate. If the claim seems straightforward, the tribunal will usually send you a Notice of Hearing (hearing date) with form IT1. For more complex cases, it will send you the date once you have replied to the claim. If the date is impossible or inconvenient for your witnesses, tell the tribunal as soon as possible - it may be possible to change it.

If for any reason you need to ask for a postponement e.g. because one of your important witnesses is unavailable, you must do so in writing at the earliest possible opportunity and give full reasons for your request. You should copy your request to the other side so that they are aware of it. The decision to grant a postponement will be made by a tribunal Chairperson and the tribunal office will advise you of their decision in writing. The tribunal Chairperson may wish to have the views of the other side before reaching a decision.

At any time before the hearing, the claimant can withdraw their claim, or you can agree a settlement (see alternative ways of resolving disputes described below).


Alternative ways of resolving employment disputes
In addition to employment tribunals, disputes can be resolved in the following ways:

  • Mediation
    This method is used when there has not yet been any claim submitted to an employment tribunal. An independent adviser suggests ways for the disputing sides to reach voluntary agreement. CEDR, the Centre for Effective Dispute Resolution, is an independent non-profit organisation that can provide mediators and cost effective dispute resolution techniques. Their website is www.cedr.co.uk - the telephone number is 0207 536 6000.

    Benefits include confidentiality and the outcome has to be agreed by both parties. Mediation can also be cheaper and quicker than a tribunal.

  • Acas conciliation
    If someone has a complaint that they could take to an employment tribunal, an Acas conciliator may try to help the parties resolve the matter. The conciliation process is voluntary and free and can lead to the claimant withdrawing the claim or the parties reaching a legally binding settlement. (see ACAS - arbitration section).

    Benefits include confidentiality, the outcome is agreed by both parties and cheaper and quicker than a tribunal.

  • Arbitration
    Individual arbitration through ACAS involves an independent arbitrator hearing a case and deciding in favour of one party. It is only available for claims about unfair dismissal or flexible working and is a legally binding alternative to an employment tribunal hearing. Both sides must agree to choose arbitration.

    Benefits - A speedy, private, informal hearing. No cross-examination. Limited grounds for review of the arbitrator's decision.

  • Compromise agreement
    A legally binding agreement - not involving Acas - that offers the employee compensation in exchange for not bringing, or for withdrawing, a tribunal claim. Both parties must receive advice from a relevant independent adviser before signing. It is similar to settlement through Acas, but the advisers will charge.

    Benefits - generally offers speedy resolution, saves time and uncertainty, but you may end up paying something to an epmployee you may have beaten at a tribunal and there are the legal/advice costs.

    Preparing for a tribunal case
    The employment tribunal will write to you with a hearing date for your case at least 14 days in advance - usually much longer. You may apply to postpone the hearing by giving good reasons and alternative dates. The tribunal will reply with details of any agreed postponement.

    Should you seek professional advice?
    • Many employers choose to seek professional advice - e.g. from a solicitor or an employer's association if they have one. The problem with using a solicitor or a local or general law firm can be that they may well not have any specialist employment law knowledge and just hand the case on to a specialist firm of employment solicitors or a barrister. This can significantly add to costs, with the result that even fighting a good case can be rendered not worthwhile. Remember that you can only very rarely claim all of your legal costs, even if you win your tribunal case
    • It is usually better, therefore, first to make a clear assessment of whether you are likely to win a case. This should be based both on the rights and wrongs as spelled out in the legislation; and also on the procedures you have used as these can be material to any case
    • Then try and resolve the claim - on the basis of knowledge of the law - before it comes to a tribunal; information in the employersfriend.com site should prove useful for employers wishing both to negotiate and/or to handle their own cases
    • Look carefully at the ACAS/mediation/arbitration routes and check whether such avenues have been exhausted 

    Handling your own tribunal case

    • Remember that tribunals aim to be relatively user-friendly and handling your own case may well be an option
    • Find out if you qualify for free help in preparing your case on the CLSdirect.org.uk website
    • If the claimant's application does not adequately explain their claim, you can ask them to provide further information. If they don't you can ask the tribunal to order them to provide it
    • Agree with the other side which documents either of you will use at the hearing, and copy them into a single pack (the agreed bundle). Prepare six copies for the hearing
    • Double check your evidence - especially in areas of procedure. Check you have followed corrent procedures. If you have not, you may automatically lose any claim, though the tribunal may well reduce any awards if your failure to follow procedures was minor or not material 
    • Tell the tribunal how many witnesses you intend to call. If a potential witness is unwilling, you can seek a witness order from the tribunal to make them attend
    • Have written witness statements from yourself and your witnesses. Make six copies of the statements for use at the hearing
    • Prepare any evidence which may help in reducing compensation in the event the claimant is successful - e.g. has the claimant done everything they can to mitigate their losses?
    • In claims for breach of contract you may wish to lodge a counter-claim for breach of contract against the claimant. The tribunal documentation will explain how and when this can be done.

      The tribunal will then write to you giving dates that you need to have everything prepared by

    The tribunal hearing 

    • Remember to turn up in good time for the hearing
    • If possible, take someone with you to help with papers etc
    • Have all your papers ready and ordered
    • Make sure you have rehearsed and marshalled your arguments
    • Many hearings only take a couple of hours

    The employee/s may well be represented by a laywer from Citzens' Advice or a trade-union representative, but the tribunals are designed to be freindly to ordinary people handling their own cases - the main thing is to be certain of your arguments and to have evidence to support them, including on areas such as the procedures you followed

    Possible outcomes from tribunal cases
    An employer may:

  • succeed in defending a tribunal claim
  • or lose the claim, in whole or in part

    Unfair dismissal cases may result in one or more of the following:
  • re-instatement - to the old job as if they had never been away, on the same terms and conditions and with back pay and benefits (eg pension rights) for the period since dismissal
  • re-engagement - a new job on similar terms and conditions to the old position. Back pay may not be awarded if the employee's conduct contributed to the dismissal. (Tribunals will only order reinstatement or re-engagement if they believe it can actually work)
  • financial compensation - by far the most common outcome

    Apart from cases involving discrimination, there are limits to the amounts of compensation tribunals can award - and awards are often lower than media headlines suggest.

    Compensation may also be increased or decreased if either of the parties has not followed the statutory disciplinary and grievance procedures before the claim is made.

    • Costs
    Costs are be awarded only in very limited circumstances - broadly, where the tribunal considers one party has acted unreasonably in pursuing or conducting their case. This can make using lawyers an often expensive business, especially for relatively straightforward cases, as you may well not be able to reclaim any legal costs.

    However, changes have also been made to the cost rules to deter abuse of the system. Tribunals are now able, in certain circumstances, to:

  • make an award against a party for time spent by the other party in preparing their case
  • or make orders for wasted costs directly against paid representatives.

    These changes are designed to reduce vexatious cases or abuse of the system by either party.

    Challenging a tribunal decision
    There are limited rights to apply for the review of an Employment Tribunal decision, or to appeal against the decision to the Employment Appeals Tribunal (EAT).

    • You may appeal only:

  • on a point of a law - ie on the grounds that the employment tribunal misunderstood or misapplied the law
  • or if the decision is perverse (one that no reasonable tribunal could have reached).

    The appeal tribunal will normally be a judge alone or a judge and two lay (non-legal) members. The EAT does not usually listen to new evidence - ie evidence not produced at the original Tribunal. You may represent yourself or be represented, eg by your employers' association or a lawyer. If you wish to appeal, tell your representative (if you have one) and ask the Employment Tribunal for the extended reasons of their decision. You then have 42 days from the date on which the extended written reasons were sent to put in your notice of appeal.

    If you are appealing against an order or direction given at a preliminary hearing, you must appeal within 42 days of the order or direction, enclosing a copy of it.

    You should get an acknowledgement of receipt from the EAT within seven days. If you do not, you must make inquiries. Do not leave sending your appeal until the last minute as the EAT applies the time limit very strictly.

    As an employer your rights to seek a review of the tribunal hearing will be set out in the notes to the Employment Tribunal decisions.

    Useful contact numbers and websites:
    Acas - www.acas.org.uk - 08457 47 47 47

    Employment Tribunals Service - www.employmenttribunals.,gov.uk - 0845 7959775

    Employment Appeals Tribunal - www.tribunalsappeals.gov.uk  - 020 7273 1040



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