How long do I have to be employed before I can raise an Employment Tribunal claim?
How much does it cost to raise a claim at the Employment Tribunal?
Can I be exempted from the Employment Tribunal fees?
How will the Advisory, Conciliation and Arbitration Service (Acas) be involved in my case?
What is the maximum time after dismissal that I can raise a claim?
What if I don’t have a written contract?
I have submitted at ET1, what happens now?
What happens if the claim is undefended?
What is a pre-hearing review?
Is it possible to amend my claim once it has been submitted?
Can I claim for loss suffered as a result of my employment issue?
If I lose, will I have to pay the other side’s costs?
How much notice do I have to give my employer that I’m leaving?
Under what circumstances is my employer allowed to make a deduction from my pay?
Can my employer change my working hours without giving notice?
What holidays am I entitled to and can my employer decide when I am allowed to take them?
Can I record a disciplinary meeting?
Can I be accompanied to a disciplinary meeting with my employer?
In what circumstances can my employer make me redundant?
Am I entitled to adjustments in the work place because I have a disability?
Does my employer have to grant me flexible working hours because of family commitments?
To claim unfair dismissal, you must usually have worked for your employer for at least two years. However, there are no such service requirements for claims of unpaid wages, discrimination or whistleblowing.
There are fees applicable to raise a claim in an Employment Tribunal. Claims are classed as either Type A (e.g. unpaid wages, redundancy pay, holiday pay, notice pay) or Type B (e.g. unfair dismissal, discrimination, equal pay). Type A claims cost more than Type B, details of current fees can be found at https://www.gov.uk/employment-tribunals/make-a-claim. For every claim there is a both an issue fee, payable at the time of raising the claim, and a hearing fee, payable if the claim proceeds to a hearing. If you are one of a number of employees taking the same action against the same employer, the fees are likely to be different.
It is possible to apply for an exemption or reduction of fees if you are on certain benefits or on a low income. More information can be found here: https://www.gov.uk/get-help-with-court-fees. You must submit your application for a fee waiver within 7 days of lodging your Employment Tribunal claim form. Failure to do so (or to pay the fee) will result in your claim being refused.
The time limit for raising most employment claims is three months less one day from the incident leading to the claim. In unfair dismissal claims time will run from the date your contract was terminated. For example, if you were dismissed on 14th April your deadline would be 13th July. Appealing a decision to dismiss will NOT affect your time limit if your dismissal has already taken effect. In wages claims, time will run from the date your wages should have been paid to you. In discrimination claims, time will run from the date of the discriminatory act (or the last discriminatory act in a series). Your time limit will be extended by the time spent in the early conciliation process (see below). It is important that your claim is submitted within the deadline, as there are only very limited circumstances in which the employment tribunal will accept an unfair dismissal claim if it is submitted late.
For most cases it is compulsory to use Acas’ free early conciliation service before raising a claim. Acas is an independent publically funded organisation that acts impartially in attempting to resolve the dispute before tribunal proceedings are necessary. Early conciliation usually lasts for up to a month, but can be extended by up to two weeks. If it is not possible to resolve the dispute at this stage you will be issued with an EC certificate which allows you to raise an Employment Tribunal claim. This certificate confirms that the early conciliation requirements have been met and the certificate number should be entered on to the ET1. The ET1 is the form used to raise a claim at the Employment tribunal and can be found here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/309967/ET1_web_0514_save.pdf
The deadline for applying to the tribunal is extended by the amount of time you spend in conciliation (if you spend three weeks in conciliation, the deadline for applying to the tribunal is extended by three weeks.) Regardless of how much time remains before the deadline expires, you will always have at least one month from the date the EC certificate is issued to raise the claim.
You do not need to have a copy of a contract of employment to be able to raise employment tribunal proceedings. The law states that where the employment lasts for over one month, within two months of the employment commencing an employee should be issued with a written ‘statement of employment’. This may not be a full employment contract but will outline all the main terms and employment conditions. If your employer has never issued you with a written statement you can add a complaint about this on to another claim (e.g. for unfair dismissal) and, if you are successful, you may be awarded between two and four weeks’ pay.
If you signed a contract but no longer have a copy you should write to your employer requesting they send you this.
Once an ET1 (the form used to raise a claim at the Employment tribunal) has been submitted, you will be informed by the Employment Tribunal that your claim has been accepted and the other side (the respondent) will be asked to submit a written response to your claim (known as an ET3). This will give them an opportunity to raise any defences; normally this will have to be submitted within 28 days. You will be sent a copy of the ET3 and will be informed of how your case will proceed.
If the claim is undefended i.e. no ET3 is submitted by the employer, the tribunal can issue a default judgment in your favour. However this may not be the end of the matter, as it is still possible for your employer to ask for the judgment to be recalled, provided this happens within 14 days of the date of the judgment, if this happens the tribunal will have a full hearing on your case. If the claim is defended but the respondent does not attend a hearing then it will normally go ahead without them and a judgment can still be issued.
A preliminary hearing might be set in order to discuss case management issues such as narrowing the issues in dispute, documents, witnesses, length of hearing etc. However, preliminary hearings can also be used to make a decision about a particular preliminary legal issue that is crucial to the case continuing. For example, if there is any question of your claim being time barred (exceeding the permitted time limit) this would be decided here. It is vital that you attend or be represented at a preliminary hearing.
It is possible to amend an ET1 claim; this should be done by informing the tribunal in writing as early possible. Depending on what amendment is being sought a late amendment could be refused on the basis that fair notice of the change has not been given. A late amendment could result in postponement and you could be ordered to pay the costs for this.
It is vital that the name of your employer is correctly stated on your ET1 and that the name that you give to Acas is correct and matches the ET1. Sometimes a company can use a number of different trading names and so it is important to ensure you use the name of the company which actually employed you and their registered address. The WebCheck facility on the Companies House website can be useful in assisting with this if you are employed by a limited company.
The amount of compensation you could claim depends on the type of issue you are raising. Generally speaking, the employment tribunal will make awards which put the claimant in the same position they would have been but for the employer’s failings.
If the claim is for unpaid wages, the award will generally be restricted to the amount of unpaid wages. If the claim is for unfair dismissal, the award will be made up of a basic award and a compensatory award. The basic award is based on age and length of service and worked out in the same way as a statutory redundancy payment. If you have received a redundancy payment you will not be entitled to a basic award. The compensatory award could include your loss of earnings while you are looking for a new job, loss of any benefits, including pension, and any expenses you incur in seeking new employment. You may also be able to claim continuing losses after you start a new job if you are unable to find new work at a comparable salary and/or with comparable benefits. This award is limited to a maximum of a year’s salary or £78,962 (whichever is lower).
In discrimination claims you can also claim an award for “injury to feelings”.
If you lose your case the employment judge will not normally order you to pay the other side’s legal costs. However, costs can sometimes be awarded if a judge decides that you have acted unreasonably in raising the claim or in your conduct during proceedings. The rules state that a tribunal may make an order where it is satisfied that “a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or any claim or response had no reasonable prospect of success”. If the tribunal is satisfied that this applies to your case it is likely that you will have to pay the costs.
In most cases the notice period will be stated in the contract of employment and this should be adhered to by both the employer and the employee. The minimum notice period required is set by section 86 of the Employment Rights Act 1996. Employees who are employed for a period of one month but less than 2 years are entitled to one week’s notice from their employer rising thereafter by one week for every year of continuous service up to a maximum of 12 weeks.
An employer is only allowed to make deductions from pay where it is required by law, allowed for in the employee’s contract or has been agreed to in writing by the employee beforehand.
Examples of legitimate deductions:
- An overpayment of wages or expenses
- Strikes and industrial action
- Deductions from your pay for till shortages or missing stock (but if you are a retail worker and have a term in your contract allowing deductions from your pay for till shortages or missing stock, any such deduction cannot exceed one-tenth of your gross pay for that period)
If a deduction does not fall within one of the above categories, you may be able to raise a claim for unauthorised deduction from wages.
If your contract has fixed hours your employer generally cannot change your hours permanently without notice. Any fundamental change to a contract term requires agreement from the employee. If the change is forced on the employee, the employer may be in breach of contract which allows the employee to resign and claim constructive dismissal. However, some contracts may contain a term allowing for change to be made and each case will turn on its own specific facts and circumstances.
All workers are entitled to a minimum of 5.6 weeks' holiday a year if you work full-time (and altered accordingly for part-time working). Your employer is allowed to stipulate when you take your holidays as long as they give you reasonable notice of when this will be.
Recordings of all meetings should only be done with the permission of your employer. Your contract may stipulate that such recordings are prohibited. Covert recordings are not automatically inadmissible as evidence in an employment tribunal. However there are a number of other reasons, such as public policy, why the tribunal may refuse to allow such recordings to be used.
You have the legal right to be accompanied to a disciplinary hearing, grievance hearing or appeal hearing by a colleague, trade union official or trade union representative. Your employer’s disciplinary or grievance procedure may allow you to be accompanied by another person, but your employer does not have to allow this. If you are disabled, it may be reasonable for your employer to allow another person such as a carer to attend the meeting.
Please note that you do not have the legal right to be accompanied to any other meeting with your employer. In particular, you do not have the right to be accompanied to an investigation meeting which precedes a disciplinary hearing.
A business is permitted to make a person redundant where there is an economic, technical or organisational reason for ending the job, such as where there has been a downturn in business which warrants job losses or where the business has to close down altogether. An employer must use a fair method of selecting employees for redundancy and cannot use reasons such as age, gender, marital status, race, sexual orientation, membership of a trade union etc. Experience, qualifications, performance, absence record and disciplinary record are allowed to be considered. However, an employer should discount any absences that are pregnancy or disability related.
If your employer offers you suitable alternative employment you must have good reasons if you decide not to take this. You have the right to a minimum of a four week trial period in your new role. Within those four weeks you have the right to inform your employer that your new role is unsuitable without this affecting your right to statutory redundancy pay.
If you are being dismissed for redundancy, you have the right to notice and redundancy pay. You can calculate your redundancy pay entitlement at www.gov.uk/calculate-your-redundancy-pay.
If you feel your employer has wrongly made you redundant you should appeal the decision to dismiss you. If that is not successful you can raise a claim for unfair dismissal at the employment tribunal. Please note the time limit for this is three months less one day from the date your employment ended, not from the date of any appeal.
Under the Equality Act 2010 your employer is required to make ‘reasonable adjustments’ so as to ensure that disabled people are not treated less favourably than non-disabled people. When deciding what is a reasonable adjustment, factors taken into account include the size of the business and the cost and practicality of the adjustment.
In order to rely on the protection provided by the Equality Act the employee must have a disability which means a physical or mental impairment, which has lasted or is likely to last at least 12 months and which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. It is not enough to simply have a physical or mental illness which affects you at work.
Everyone has the right to make a request for flexible working, regardless of whether it is for family reasons or not. This does not mean that your employer must grant such a request. In order to make a request, you must have worked for your employer continuously for the previous 26 weeks before making the application. The request must be made in writing and only one request can be made in any 12 month period. The employer must give reasonable consideration to your request and respond to in writing within three months, providing you with the reasons for any refusal of the request.