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6. Writing the tribunal claim (ET1)

Released 8th May, 2012|6,269 Views

A tribunal case is started when a worker’s Claim form arrives at the tribunal office. It must arrive within the correct time limits. 

The standard form should be used. It is often known as an ‘ET1’ and can be found on the Employment Tribunal Service website.

You should try, if possible, to comply with the ACAS code on disciplinary and grievance procedures.  If you do not it could reduce the amount of any compensation that you are awarded.

The form can be printed and posted, faxed or hand delivered to the tribunal, or it can be completed on line and emailed through the on-line system. Either way, ensure proof of receipt before the time-limit and keep a copy.

Various details need to be completed on the form, eg name, address and pay. At box 5.2 of the new form, the worker needs to write a short statement setting out her Claim. This can be written by the worker or her representative, and in the first person or the third person. The entire form must be checked for accuracy by the Claimant.
 
A worker who starts a tribunal Claim is called the ‘Claimant’. The employer against whom the Claim is made is called the ‘Respondent’.

Naming individual Respondents
 
In discrimination cases, the individual or individuals who discriminated against the worker can be named as additional Respondents, but it is essential always to name the employing organisation as the main Respondent. For other Claims, eg under the Employment Rights Act 1996, no individual Respondents can be named.

The main reasons to name an individual Respondent are:
  • Where a particular individual has carried out most or all of the discriminatory actions.
  • Where there is a risk that the employing organisation will avoid legal responsibility because it had taken all reasonably practicable steps to prevent any discrimination happening. (This defence rarely succeeds, but it is sometimes put forward.)
  • Where there is a risk that the employing organisation will go into liquidation before paying any compensation awarded by the tribunal. The Claimant may then be able to get some or all of the compensation from the individual Respondent.

The main reasons against naming an individual Respondent are:
  • It is not always easy to clearly identify which individual is responsible for the discrimination.
  • Naming one individual may imply that other individuals have done nothing wrong.
  • Employment tribunals are often uncomfortable about pointing the finger at particular individuals. In a borderline case, it may put them off finding the employer guilty of discrimination.
  • If individual Respondents are going to be joined in, it is inadvisable to add more than one or two without very good reason. It can look vindictive to the tribunal to name too many, or as if the Claimant has lost her sense of judgement and is is wildly accusing everyone of discrimination without evidence.

Individual Respondents are sometimes represented by the employing organisation’s solicitors, but sometimes get their own solicitors if it is a controversial case, eg concerning harassment.

Drafting tips for box 5.2

On this site, we have provided a set of precedents for writing the statement at box 5.2. The precedents cover different situations, eg pregnancy dismissal or refusal of part-time working. We have set out some guidance and tips for each scenario with the precedents. In addition, here are some general tips.
  •  It is crucial to establish all the facts and ensure nothing is left out before deciding what legal Claims apply and which facts are relevant.

  • The length of the statement depends on how many incidents have occurred, but as an extremely rough guide, about one and a half pages would not be unusual.

  • It is easier for the tribunal to read if the statement is typed and use short numbered paragraphs, with a line space in between.
  •  
  • Put in the dates of all relevant incidents if possible. Always put the full date, ie with the year.

  • Identify relevant managers or colleagues by their full name and job title.

  • Try to describe the important events in chronological (ie date) order.

Although it is repetitive of some information elsewhere on the form, it is often easiest to write the first paragraph as follows: ‘The Claimant started work for the Respondent (or name them) on (give date). She was employedas (give job title).She was dismissed / made redundant / left (or whatever) on (date).

Then go straight to the events which have caused the problem. If it is relevant, the Claimant may first mention some important intervening event, eg 
-   the date when the Claimant was promoted to her current position
-   the date when a new manager (who is the one who has caused the problems) took over.

 Describe the events causing the problem as concisely as possible. A few weeks before the hearing, the Claimant will write a full witness statement giving all the details. The witness statement is often anything from 10 – 50 pages long. At this stage, it is important just to outline the case.

All key incidents and all discriminatory actions must be mentioned.

 If the employer made any relevant adverse remarks, eg negative comments about the Claimant’s pregnancy, these must be included. It is important to be absolutely accurate. If the Claimant cannot remember the exact wording, say so, eg ‘The Claimant’s manager said, ‘It was a pity she got pregnant so quickly,’ or words to that effect.’

 Always remember what needs to be proved under the relevant law. Put in the key facts in the light of that.

At the end of the description of facts, set out the relevant law. 

Where two or more different legal rights might apply, these can all be claimed on the same form and set out in the same statement. It is quite common to make Claims ‘in the alternative’ or to say ‘Further or alternatively, I Claim …’ or ‘and/or’, for example, ‘I was dismissed because of my pregnancy contrary to the Equality Act 2010 and/or my dismissal amounted to automatic unfair dismissal under the Employment Rights Act 1996 and/or I was unfairly dismissed on ordinary principles.’

Where several legal rights apply, these may all be based on the same facts (eg dismissal due to pregnancy can be sex discrimination and automatic unfair dismissal) or they may be based on different facts (eg the employer also failed to give outstanding holiday pay, so there is a holiday pay Claim). In the latter case, it is a matter of judgement whether it reads more clearly to set out all the facts covering every Claim in a single chronological ‘story’ or whether it is best to tell the main ‘story’ first and then add the facts relevant to the other Claim. Usually it is clearest to keep to a single chain of events.
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