Key case steps

These are the key steps in a typical employment tribunal case for sex discrimination including links to more detailed information. This is only a broad summary. You may need more information on finding an adviser and paying for your case or on resources and other sources of help.

Please be aware going through this procedure that any communication including any orders you get from the tribunal or Respondent (your employer or former employer) should be dealt with as soon as possible. Otherwise it’s possible your employer might apply to the employment tribunal strike out your claim.

Before you start your claim

  1. You must be aware of the time limit within which your claim must be made to a tribunal. For sex discrimination claims, this means that any claim must be made three months less one day after the date on which the act of discrimination you are complaining about happened. For example, if you were discriminated against on 1 December 2017, you must have sent your claim form to the tribunal by 28 February 2018. It is important that you check the time limit for your claim first, and make sure that if you have raised a grievance with your employer or you are negotiating with your employer you do not miss the time limit deadline for making a claim to a tribunal if you intend to make a claim.
  2. Before making a claim if you are still employed you should raise a grievance with your employer using your employer’s grievance procedure. If your employer does not have a grievance procedure you should contact your employer to tell them of your complaint. It is important to take this step because if you fail to do so that can affect any compensation that you may be entitled to if you succeed with your claim. Alternatively, you might want to see whether you can negotiate with your employer, eg for compensation for loss of your job and for a payment for your hurt feelings.
  3. You can (but do not have to) submit questions to your employer to try and see if you have a claim. This could include asking whether you have been treated consistently with any policies your employer might have in place for equality, discipline, bullying and harassment. You should make clear that you want a response, ask your employer to acknowledge receipt and reply by a set date.

Going to the Employment Tribunal – first steps (NB. Steps 4, 5 &6 do not apply in Northern Ireland – move straight to step 7)

  1. For all discrimination claims you will need to comply with a process known as Early Conciliation. Early conciliation requires you to contact Acas, the arbitration and conciliation service to indicate whether you want to try and settle your proposed claim. Even if you do not want to settle your claim you must contact Acas. At the end of that process if no settlement is reached (or you do not want to settle) Acas will issue you with a certificate. That certificate contains a unique reference number that needs to be included on your claim form.
  2. If you do not contact Acas as set out above, the Employment Tribunal will reject your claim form. This is regardless of the strength of your claim.
  3. Early conciliation will stop the time limits referred to above so in effect the clock is paused but only if you contact Acas before the expiry of the 3 month time limit. The effect of Early Conciliation is complicated and you should not delay in making your claim once the certificate referred to above has been issued by Acas. You may wish to take advice on time limits as soon as you believe that you have a claim. Please see the Acas website for more guidance on this.
  4. Send the tribunal a completed Claim form (ET1)(there is no fee). You can do this online at employmenttribunals.service.gov.uk, by post (if you send it to the central office) or in person. It’s important that this is in the correct form otherwise the claim will be rejected. You should also carefully check the instructions for how to send this to make sure it doesn’t get lost. Don’t forget to print your form (and the attachments) and keep a copy for yourself!
  5. Once you’ve sent your form you should check it has been safely received. Once the ET1 form is received, this starts the claim. The tribunal will send you a standard acknowledgement form (ET5) once your claim has been processed.
  6. A copy of the claim will be sent by the tribunal to the employer (known as the ‘Respondent’) who has 28 days to respond. If the Respondent does not reply in 28 days then the tribunal can decide what to do. They could ask you and the Respondent for further information or they could proceed to issue a judgment against the respondent.
  7. The case will be allocated a case number which must be quoted on all correspondence or telephone contact with the tribunal. The acceptance of the claim form does not mean that the tribunal has accepted that time limits have been met or that you will succeed with your claim.
  8. The employer’s Response form (ET3) will be sent to you. Each Employment Tribunal is different. In some cases the Employment Tribunal will send a timetable with the Response. It is important that you do everything that you are ordered to do. That timetable will set out all the things that need to be done to get the case to the full hearing. There is more detail below.
  9. In other cases the Employment Tribunal will tell you that there will be a hearing, known as a Preliminary Hearing, where the employment judge will meet with you and the Respondent to agree on that timetable. A hearing date will be sent to you.
  10. Acas (LRA in Northern Ireland) will get in contact with you to offer off-the-record services with the aim of helping the parties reach an agreed settlement if they want to.
  11. If the Employment Tribunal has set the timetable and you think that there is more information that you need, write to the Respondent asking for what you think is missing from the ET3. You may get a similar request from the Respondent. If you do not respond to their request or they do not respond to your request the Employment Tribunal can order that a response is provided. So, if you do not receive a response write to the Employment Tribunal asking for an order.

Considering your case

  1. Before or after stages 7-13, a Tribunal judge will consider both the Claim and the Response, and will then make orders or list the case for a Preliminary Hearing (PH).
  2. A PH may deal with case preparation so a employment judge will used to identify the relevant issues; deal with exchange of additional information and documents; fix hearing dates; arrange dates for exchange of witness statements; decide who is to prepare trial bundles (see point 19 below). Whoever attends should take their diary with them for when the tribunal fixes a hearing date and check what dates witnesses are not free. The parties should also be prepared to discuss any preliminary issues which they have been told will be decided at the PH.
  3. A PH can also be used to dismiss a case if the judge considers that the Claim is out of time or has no reasonable prospect of success.

Final hearing

  1. A final hearing date is notified (if not already set at a PH).
  2. You will need to try to agree with the Respondent the documents to go into a numbered trial bundle for the hearing. This should include any documents related to your loss, e.g. pay-slips and attempts to find work. The employment tribunal will expect the parties to agree one single bundle.
  3. Both sides write witness statements for each of their witnesses. The witness must understand that the statement is their evidence, and they need to check it is 100% accurate. At a date set by the employment tribunal before the hearing, you and the Respondent will exchange the statements. You will not have to read your statement at the hearing but you will be asked to confirm that it is your statement and whether the contents are true to the best of your knowledge and belief. You may then be asked questions by the Respondent’s representative.
  4. At some stage, you might be required to send the Respondent a Schedule of Loss and Remedy. This includes your financial losses (earnings and benefits), past and future.
  5. The final hearing is held in public. In discrimination cases there will be a judge and two lay members who hear the case. The judge is legally qualified, one of the lay members is likely to have an HR background and the other a trade union background. The aim is for the panel to understand issues from an employee and an employer perspective.
  6. The final hearing may only say if you have won or lost. Or it may at the same time deal with remedy, i.e. what compensation or other remedy the Claimant should be awarded if they win.
  7. Sometimes the tribunal announces the outcome at the end of the hearing. More often in discrimination cases, the decision is ‘reserved’, i.e. decided upon and sent to you later.

 

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