Employment Tribunal Rules & Procedures

If a workplace dispute cannot be resolved on mutually agreeable terms with an existing or former employee, you may find yourself defending a claim in the employment tribunal. This could be, for example, a claim for unlawful deduction of wages, unfair dismissal or unlawful discrimination. As an employer, by understanding the employment tribunal rules and how the claims process works, this will help you to make an informed decision about whether to seek to settle any dispute and, where the matter cannot be resolved on an agreed basis, how best to defend a claim.

The following guide for employers examines the employment tribunal rules and procedures, from how proceedings are commenced to what orders the tribunal can make.

 

Employment tribunal rules

 

The rules that govern procedure within the employment tribunal, and deal with the powers and discretion of tribunal judges to manage and hear proceedings, can be found under Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237). These rules set the framework for tribunal processes, although employers should take advice on note any subsequent updates or amendments to ensure compliance.

Guidance on the rules as to how cases are handled in employment tribunals, from starting a claim to what happens at a hearing, covers various matters including initiating and responding to a claim, case management orders, hearings, and the tribunal’s decision. With increasing reliance on digital processes and potential virtual hearings, understanding these rules is essential for effective participation.

 

Time limit to bring a tribunal claim

 

Employees who wish to bring a claim to the employment tribunal must adhere to strict time limits. In most cases, the claim must be submitted within three months less one day from the date of the incident or dismissal. This rule applies to common claims such as unfair dismissal, workplace discrimination, and unpaid wages. Claims related to redundancy payments or equal pay may have slightly different time limits.

The mandatory ACAS Early Conciliation process pauses the time limit for lodging a claim. Early Conciliation aims to resolve disputes without the need for formal tribunal proceedings. During this process, the clock stops running on the limitation period, giving both parties additional time to negotiate a settlement. Once conciliation concludes, the claimant receives an Early Conciliation Certificate, which they need to proceed with the claim. The time limit then resumes, factoring in the paused period.

Employers must be vigilant when receiving notification of a potential claim. Delays in preparing a defence or engaging in Early Conciliation could impact their ability to respond effectively. It is also essential to document key dates and seek legal advice promptly to ensure all procedural requirements are met within the necessary timeframes. By understanding these deadlines, employers can better manage risks and prepare for any tribunal proceedings.

 

How do employment tribunal proceedings begin?

 

A claim is commenced in the employment tribunal, either online or by post, by a claimant issuing an ET1. This is the claim form. As the defendant, you will then be required to complete an ET3. This is your response or defence to the claim. Where a claim is issued against you, the tribunal will send you a ‘response pack’. Employers typically have 28 days from the date the response pack is sent to reply to the claim.

Responses to claims can be made either online or by filling out and returning the response pack sent to you. You can also download and complete a response form from the tribunal’s website and send it to the tribunal office handling the case. It is crucial to ensure that the completed response form reaches the tribunal office by the specified deadline. Employers should take proactive steps to track deadlines and submit forms promptly to avoid unnecessary risks.

Failure to respond within the 28-day time limit can result in a default judgment being made in the claimant’s favour. If it’s not possible to complete the form in time, you may request an extension of the deadline. Extensions must be requested in writing as soon as possible, clearly explaining the reasons for the delay. Acceptable reasons may include illness, unexpected business disruptions, or difficulties in gathering the necessary information. However, if no extension request is made within the initial 28-day period, the tribunal is likely to proceed as if no defence has been submitted, potentially resulting in an unfavourable judgment.

Employers should be aware that tribunals increasingly expect claims and responses to be submitted digitally. While traditional postal methods are still allowed, online submission is often quicker and more reliable. Staying informed about tribunal office preferences and submission processes is an effective way to avoid procedural errors.

Finally, employers should ensure that they have robust internal processes for handling tribunal claims, such as assigning responsibility to specific team members or external advisers. This approach can help prevent missed deadlines and ensure compliance with tribunal rules, minimising the risk of default judgments or other procedural setbacks.

 

What is early conciliation?

 

When someone wants to bring a claim before an employment tribunal, they must first go through the mandatory ACAS Early Conciliation (EC) procedure and obtain an EC certificate confirming that they have done so. This means that prior to a claimant lodging their claim, ACAS may notify you of the possibility of proceedings. ACAS will then offer to work together with both parties to try to resolve the dispute without the need for legal action.

Although the parties are not required to participate in early conciliation, engaging in this process can provide an opportunity to settle disputes before they escalate. The conciliation period is set at 6 weeks, having been extended from 4 weeks to offer greater flexibility and ease the burden of the tribunal case backlog arising from the COVID-19 pandemic. During this period, the statutory time limit for lodging a claim is paused to allow the parties sufficient time to explore settlement options.

Early conciliation can be a cost-effective and efficient way to resolve disputes without the need for formal hearings. It also offers a chance to maintain a positive working relationship if the claimant remains employed by you. If an agreement is reached, ACAS will document the settlement in a legally binding form called a ‘COT3’, which prevents the claimant from pursuing further legal action on the same matter.

Employers can also attempt to resolve disputes at any stage during the process, whether before or after a claim is lodged, by offering a settlement agreement. These agreements must be carefully drafted to ensure the employer is fully protected from future claims. Legal advice is strongly recommended to ensure that settlement terms are clear, enforceable, and effectively close the dispute.

 

What happens at a preliminary hearing?

 

Not every case will involve a preliminary hearing. The employment tribunal judge will decide whether a claim requires a preliminary hearing after reviewing the ET1 and ET3 forms. In many cases, the tribunal will issue standard directions with time limits for compliance, outlined in a case management order.

For more complex claims, particularly those involving allegations of unlawful discrimination, a preliminary hearing is often deemed necessary before listing any final hearing. If a preliminary hearing is scheduled, the tribunal will notify you in writing of the date and provide an explanation of what will be discussed.

A preliminary hearing helps the tribunal identify and narrow the issues in the case and set case management directions to assist the parties in preparing for the final hearing. Common issues addressed at a preliminary hearing include:

 

• The date and time of the final hearing
• The estimated length of the hearing
• Witnesses to be called and documents to be disclosed
• A timetable for the exchange of statements and documentation

 

Preliminary hearings may also address specific issues, such as determining whether the claimant meets the definition of a disabled person in a discrimination claim or whether parts of the claim should be struck out. While the tribunal generally does not assess the overall merits of the claim at this stage, it may provide indications of how certain aspects might be viewed at a final hearing.

Where the hearing is purely for setting case management directions, it is often conducted by telephone or video conference. You may instruct a solicitor or barrister to handle the hearing on your behalf, minimising the need for someone from your organisation to attend. In cases involving unrepresented claimants, preliminary hearings may be conducted in person, although remote hearings remain common.

In more complex cases requiring witness evidence on preliminary issues, it is advisable for witnesses to attend along with a representative from your business who has the authority to make decisions and provide instructions to your legal team. These hearings are increasingly held via video conference, streamlining the process.

Attending a preliminary hearing in person can be beneficial in cases where decisions made may significantly impact your ability to defend the claim. Observing the tribunal process can help you better prepare for the final hearing and may offer an opportunity for without-prejudice discussions with the claimant to explore settlement options.

Preliminary hearings also provide an opportunity to consider judicial mediation. A trained employment judge may facilitate a mediation session at a private preliminary hearing, potentially helping the parties resolve the dispute and avoid a final hearing. Judicial mediation is a cost-effective way to bring claims to an early conclusion, reducing stress and legal costs for all parties involved.

 

What happens at a final tribunal hearing?

 

Following the preliminary hearing, the parties must comply with any directions set out in the case management order to prepare for the final hearing. This typically involves disclosing documents and exchanging witness statements according to a scheduled timetable. If the claim cannot be resolved in the interim, it will proceed to a final hearing for determination by the tribunal.

To prepare for the final hearing, you should assess the issues involved and determine what evidence, both written and oral, is required to support your case. Legal representatives can provide guidance on the evidence needed, but the tribunal will only consider documentation and witness statements relevant to the issues in dispute.

Witnesses are usually required to attend the final hearing, either remotely or in person, unless their evidence is provided in writing. If a witness is reluctant to give oral evidence, an order can be sought during case management to ensure their attendance.

Final hearings are generally held at the employment tribunal office closest to the claimant’s place of work. Even if you have a solicitor or barrister representing you, it is advisable for someone from your business with decision-making authority to attend. This person can provide instructions to your legal representative and make real-time decisions if necessary. Depending on the complexity of the case, a final hearing can last from half a day to several weeks, with 1-3 days being typical.

At the hearing, the claimant and their witnesses will usually give evidence first, unless the case concerns unfair dismissal. You or your representative will then have the opportunity to cross-examine the claimant and their witnesses. Following this, your own witnesses will present their evidence, which may also be subject to cross-examination. Tribunal judges or panel members may ask questions of any witness.

Once all evidence has been presented, the tribunal will hear closing arguments from both sides. These arguments summarise the evidence and legal submissions supporting each party’s case. The tribunal will then deliberate, considering the evidence and arguments before reaching a decision.

The tribunal’s decision may be announced on the day of the hearing or sent in writing later, usually within a few weeks. Decisions are published on GOV.UK and accessible to the public. If the tribunal finds in favour of the claimant, it may order remedies such as compensation or reinstatement, depending on the nature of the claim.

 

What orders can the tribunal make?

 

Where a decision is made in the claimant’s favour, the tribunal may order you to pay compensation or reinstate the individual if they were unfairly dismissed. The tribunal can also require you to cover the claimant’s expenses and repay any state benefits the claimant received due to the dispute. In more complex cases, the tribunal may adjourn the issue of remedies to a separate hearing.

If you successfully defend the claim, you will not typically receive compensation. However, you can request the tribunal to award costs against the claimant if they acted unreasonably, for example, by pursuing a claim with no reasonable prospects of success or failing to comply with tribunal orders.

Either party may apply for the tribunal to reconsider its decision. Such requests must be submitted in writing within 14 days of the judgment and should include valid reasons, such as an error in how the decision was reached or the discovery of new evidence. Appeals can also be lodged with the Employment Appeal Tribunal if it is believed that the tribunal made a legal error. It is essential to act promptly and seek legal advice to understand the grounds for any appeal or reconsideration.

 

How long does an employment tribunal claim take?

 

The time taken to resolve an employment tribunal claim varies significantly depending on the complexity of the case and the tribunal’s workload. Simple cases, such as unpaid wages or holiday pay disputes, may be resolved within a few months. However, more complicated claims, particularly those involving discrimination, whistleblowing, or multiple parties, can take over a year to conclude.

The introduction of remote hearings has helped improve efficiency in some cases, but backlogs remain a challenge. Delays are particularly common in regions with high volumes of claims or where cases require multiple hearings, such as preliminary and final hearings. Employers should prepare for the possibility of adjournments or extensions, especially in complex disputes.

The process typically includes several stages: Early Conciliation, the submission of claim and response forms (ET1 and ET3), any preliminary hearings to address procedural or jurisdictional issues, and finally, the substantive hearing. Compliance with case management orders, including document disclosure and witness statement exchange, also impacts timelines.

Employers should use the time before a hearing effectively by gathering evidence, preparing witnesses, and ensuring all procedural requirements are met. Proactive engagement with the claimant during Early Conciliation or pre-hearing discussions can sometimes lead to a quicker resolution. Understanding the potential duration of a claim allows employers to plan resources and minimise the disruption caused by ongoing litigation.

 

Need assistance?

 

DavidsonMorris are UK employment law specialists. Our lawyers are on hand to provide expert advice to employers facing legal disputes in the workplace, with guidance on early resolution options through to employment tribunal representation. Early advice is generally recommended to allow all options to be explored to resolve disputes before they are litigated, but if a claim is made against you, we can advise on the employment tribunal rules and the process you will need to follow to comply with your obligations. For advice on a dispute or tribunal matter, contact us.

 

Employment tribunal rules & procedures FAQs

 

What are employment tribunal rules?

Employment tribunal rules are the legal procedures and guidelines governing how claims are handled, from submission to final decisions. These rules ensure fairness and consistency in resolving workplace disputes.

 

How do I respond to an employment tribunal claim?

You must complete an ET3 response form within 28 days of receiving the tribunal’s response pack. This can be done online or by post. Failing to respond on time may result in a default judgment against you.

 

What happens if I miss the deadline to respond?

If you miss the 28-day deadline, you must immediately apply to the tribunal for an extension, providing valid reasons for the delay. If no extension is granted, the tribunal may issue a default judgment.

 

How long does an employment tribunal claim take?

Simple claims may take a few months, while complex cases involving discrimination or whistleblowing can take over a year. Factors such as case complexity and tribunal backlogs can influence timelines.

 

What is judicial mediation?

Judicial mediation is a voluntary process where a trained employment judge helps both parties negotiate a settlement before the final hearing, potentially avoiding further litigation.

 

What remedies can the tribunal award?

If the tribunal rules in the claimant’s favour, remedies may include compensation, reinstatement, or re-engagement, depending on the claim’s nature and circumstances.

 

Glossary

 

 

Term	Definition
ET1 Form	The claim form submitted by a claimant to start an employment tribunal claim.
ET3 Form	The response form submitted by an employer to defend against a claim brought to the tribunal.
Case Management Order	Directions issued by the tribunal to organise the preparation and conduct of a case.
Default Judgment	A decision made in favour of the claimant when the respondent fails to respond or comply with tribunal rules.
Early Conciliation	A mandatory process managed by ACAS to help parties resolve disputes before lodging a tribunal claim.
Preliminary Hearing	An initial hearing to address procedural or specific legal issues before a final hearing.
Final Hearing	The tribunal hearing where evidence is reviewed, and a decision is made on the claim.
Judicial Mediation	A voluntary process facilitated by a judge to help parties reach a settlement before the final hearing.
Reinstatement	An order requiring an employer to return the claimant to their former job following an unfair dismissal ruling.
Compensation	A financial remedy awarded by the tribunal to the claimant for losses or damages incurred.
Employment Appeal Tribunal (EAT)	A higher tribunal that hears appeals on points of law from employment tribunal decisions.