Employment Tribunal
An employment tribunal claim does not have to be the disaster it feels like.
If an ACAS Early Conciliation notification has landed on your desk, or you believe a claim may be coming, the most important thing you can do right now is get the right support in place. We work alongside employment solicitors to support employers from the first notification through to resolution.
Before You Set Off
Picking Up the Pace
Maintain Momentum
Shifting Up a Gear
Bumps in the Road
Changing Direction
ACAS Early Conciliation: your first and best opportunity
Before an employee can submit a tribunal claim, they must contact ACAS and give them the opportunity to facilitate a resolution. This is called Early Conciliation. ACAS will contact you to find out whether you are willing to explore settlement. The process is voluntary and confidential. Anything discussed during Early Conciliation cannot be used as evidence in a tribunal if conciliation fails.
Early Conciliation is not a sign of weakness. It is a practical and commercially sensible opportunity to resolve a dispute before it becomes a formal claim. The cost of settling at this stage is almost always lower than the cost of proceeding to a hearing, even where the employer is confident the claim is groundless.
We advise on how to approach Early Conciliation, whether settlement is appropriate and at what level, and how to position your response. We work alongside ACAS-registered conciliators and employment solicitors throughout this process.
If you receive an ACAS Early Conciliation notification
Contact us immediately. The clock starts running from the moment ACAS issues the notification. Decisions made in the first days of the process, including how you respond to ACAS and whether you engage with conciliation, can affect the outcome significantly. Do not wait to see what happens next.
What is an employment tribunal?
An employment tribunal is an independent judicial body that hears claims brought by employees or former employees against their employer. Claims cover a wide range of matters: unfair dismissal, wrongful dismissal, discrimination, breach of contract, unpaid wages, and unlawful deductions from pay, among others.
Tribunals are not courts, but they have the power to make binding decisions and award significant compensation. For small businesses, the financial and operational impact of a tribunal claim, even one that is ultimately unsuccessful, can be substantial.
The tribunal process begins before any formal claim is issued. Before an employee can submit a claim, they must first notify ACAS and go through a process called Early Conciliation. This is both your earliest warning and your first opportunity to resolve the matter.
The tribunal process: what to expect
The ET1: the claim form
If Early Conciliation does not resolve the matter, the employee submits their claim on an ET1 form. This sets out the nature of the claim, the facts relied on, and the remedy sought. You will receive a copy and be required to submit a response.
The ET3: your response
You have 28 days from receipt of the ET1 to submit your response on an ET3 form. Missing this deadline means you lose the right to take part in the proceedings and the tribunal may decide the case in your absence.
The ET3 is your first opportunity to set out your position clearly and on record. It must be accurate, complete, and drafted with the eventual hearing in mind. We work with employment solicitors to draft ET3 responses for clients, making sure the response is strong from the outset.
Preliminary hearings and case management
Many cases involve one or more preliminary hearings before the full hearing takes place. These deal with procedural matters: identifying the issues in dispute, setting a timetable for disclosure and witness statements, and sometimes determining preliminary points of law. We work with employment solicitors to assist in the case management process for clients, making sure you are prepared at every stage.
Disclosure and witness statements
Both parties are required to disclose the documents relevant to the claim. This includes all documents that support your case and all documents that help the other side, even if they are unhelpful to you. Failing to disclose relevant documents is a serious matter.
Witness statements must be prepared for everyone giving evidence at the hearing. These are written statements setting out each witness's account of the relevant facts. They stand as evidence-in-chief at the hearing, meaning the tribunal reads them in advance and the witness is then cross-examined on their contents.
The quality of your witness statements is one of the most significant factors in the outcome of a hearing. We work with employment solicitors to prepare these for clients.
The hearing
Most employment tribunal hearings are heard before a tribunal panel consisting of an Employment Judge and, in discrimination cases, two lay members. The hearing is held in public. Written submissions and oral evidence are presented by both sides, witnesses are cross-examined, and the tribunal reaches its decision.
In straightforward cases, the decision may be given on the day. In more complex cases, a reserved judgment is issued in writing after the hearing.
What tribunals can award
The remedies a tribunal can award depend on the type of claim:
- Unfair dismissal: reinstatement, re-engagement, or a compensation award comprising a basic award (calculated like statutory redundancy pay) and a compensatory award which is uncapped
- Discrimination: compensation is uncapped and can include an award for injury to feelings in addition to financial loss
- Wrongful dismissal: damages for breach of contract, typically the notice pay the employee was entitled to
- Unpaid wages and unlawful deductions: the amount owed
- ACAS Code uplift: where an employer has unreasonably failed to follow the ACAS Code of Practice, compensation can be increased by up to 25 per cent
Beyond the compensation award itself, the cost of defending a tribunal claim includes legal fees, management time, and the distraction of a formal process that can run for many months or years. Even a claim that is ultimately unsuccessful is expensive to defend.
The cost of a tribunal claim
One of the most important things to understand about employment tribunals is that the costs are real even when you win. Unlike civil courts, employment tribunals do not routinely award legal costs to the successful party. Winning a tribunal claim does not mean you recover your legal fees.
This is why Early Conciliation and pre-claim settlement deserve serious consideration in every case, regardless of how strong your position is. A settlement at an early stage, even where you believe the claim is groundless, is often the most commercially sensible outcome.
We advise on this calculation honestly. We will tell you what we think your position is, what a reasonable settlement looks like, and what the likely cost of proceeding is. The decision is always yours, but you will make it with a clear picture of the options.
Prevention: the best tribunal strategy
The most effective tribunal strategy is the one that means a claim is never brought in the first place. The vast majority of tribunal claims we see could have been avoided with a fair process, properly documented, at the point when the situation first arose.
A disciplinary outcome that was reached after a flawed investigation. A redundancy selection that was not objectively scored. A dismissal where the employee was not given a genuine opportunity to respond. A grievance that was never properly investigated. In each case, the claim follows directly from the process failure, not from the underlying facts.
That is why everything we do is built around getting the process right from the start. When a difficult situation arrives, the right support at that moment is always cheaper than the cost of the tribunal claim it prevents.
Our role alongside employment solicitors
Employment tribunal proceedings are better handled using legal representation in most cases. We are HR professionals, not solicitors, and we are clear about the distinction. Our role is to support you on the HR and process side: gathering the evidence, providing the factual context, advising on what happened and why the process was or was not followed correctly.
We work with trusted employment law solicitors who handle the legal representation. We coordinate the full picture so you have HR and legal expertise working together, not separately. For clients already on an Advice and Support retainer, this transition is seamless because we already know the background to the situation.
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