Employment Tribunals for Beginners

This article is not intended to constitute and should not be used as a substitute for legal advice. No liability for the accuracy of the content of this document, or the consequences of relying on it, is assumed by the author, Dr Emily Baker, or the 21 Group.

Dr Emily Baker is a Bar student and Lincoln’s Inn most senior scholar, though is not a qualified lawyer. Emily has experience acting pro bono in a higher education context and presently works in the field of employment law, but previously worked in criminal defence throughout her law degree. Emily was educated at the University of Oxford and was an academic scientist prior to embarking on a career at the Bar. 

Background

There are certain kinds of legal proceedings that, owing to the imbalance of power inherent between the parties, attract the “David and Goliath” metaphor. Nowhere is this more consistently apparent than in the Employment Tribunal (ET) — the big, powerful employer pitted against the under-resourced, underdog employee. And though this is a caricature of reality, there is truth in it

All too often, Respondent employers not only have the benefit of professional advocacy on the day of the hearing itself, but they will have received legal advice throughout the entire life of their defence (or resistance) to the claim. Meanwhile Claimants, by comparison, are generally poorly armed. They are frequently left to navigate their claims alone. From the decision to bring action in the first instance through to being advocates at their own trial, rarely has a Claimant received the equivalent in legal steer as their employer adversary. Indeed, it is thought that one-third of Claimants go unrepresented in the ET. 

Not that this is how it should be. In fact the ET, in its very design, was constructed to be more user friendly and less formal than court proceedings with the expectation it would serve many litigants in person. This is so because employment law work is (almost without exception1) not legally aided.

The Problem

We will return to how to fund ET claims shortly. For now, it is worth getting to the nub of the problem that this article seeks to address which is that the aforementioned inequality of arms many ET claims suffer from generally is only exacerbated in the higher education context.

There are two principal reasons why this is the case. First and foremost, higher education institutions leverage a uniquely powerful position in the careers of their employees. They are gold-plated institutions that attract gold-plated individuals. In any event, individuals who work at those institutions are gold by association. On commencing their employment, they have access to jobs, grants, resources and skilled labour they would not otherwise. Such jobs, grants, resources and skilled labour are the essence of career progression in academia. Institutions are clearly wise to this and they can name their price accordingly, or so the insidious mentality goes. The institution can foster certain practices employees should be expected to just put up with because to work there at all is considered a privilege. If you don’t like it, well, many will flock in their droves to take your place.

Second, there is a notorious lack of job security that many readers of this piece will be all too familiar with (that is, the short term, precarious contracts people are expected to work under naturally gives rise to anxiety on the part of the academic). But the effect of these working conditions is not merely impactful at a personal level, it actually raises a significant point of employment law. 

The point arises because those who work in the higher education sector are not necessarily employees sensu stricto, but rather ‘workers’ simply under ‘personal service’ contracts. The distinction matters because it affects what employment rights an individual has, and whether they can make their claim in the ET at all. 

What employment status do I have? 

Unfortunately I must give the lawyer’s answer here: it depends. To decide whether someone is a bona fide employee or a worker, the following definitions are applied. 

Employee: Section 230 of the Employment Rights Act (1996) defines an employee as an individual who has entered into or works under a contract of employment, though this is not as clearcut a definition as it might first appear. This is because the term ‘employee’ can be applied to more than those who have entered into contracts of employment. The application of the term is much more likely to be based on the reality of the situation2. So, to see if someone is an employee, question whether: 

  • their work is regular;
  • they have to be consistently available to work;
  • they can refuse to work; 
  • they are paid holiday pay;
  • they are required to give notice for any extended period of leave;
  • they are subject to the employer’s policies and procedures; 
  • the employer sets when and where the work is done;
  • they are unable to substitute in somebody else to do work for them.

If the answers to the above are mostly yes, someone is more likely to be considered an employee. Though the factors listed above are not exhaustive, and there is a general approach of calling a spade a spade where employment status is concerned3. In this way, contracts are not determinative of employment status, far from it4.

Worker: Unlike an employee, a worker, commonly referred to as a “limb (b) worker” for employment law purposes, is a person who works under a contract for service in a more casual relationship. It is possible to distinguish between an employee and a limb (b) worker by establishing the following

  • if the work performed is more casual with less structure and routine;
  • whether work is guaranteed to be available at all; 
  • If there is an obligation to be available for work consistently. 

Upon ascertaining someone’s worker status, it is then possible to determine what rights someone is capable of asserting. In short, workers are not usually entitled to:

  • a minimum notice period should their employer dismiss them;
  • protection from unfair dismissal;
  • time off for dependants; 
  • statutory redundancy pay.

I can bring my claim. Where do I start?

Hang fire. The starting point that is, give or take, relevant to mention in every case is that commencing court or tribunal proceedings should be avoided if at all possible. It perhaps sounds odd for someone who works in the legal profession not to advocate for litigation as a general rule, but it is rarely the panacea people think it will be. Quite aside from the delays arising from the backlogs of cases that presently plague courts and tribunals up and down the country, legal proceedings can be long and exhausting. They require substantial emotional and financial investment (and yes, I promise to say more on the latter in a moment). Do think hard before you hit the big red button. 

In lieu of ET proceedings, consider if the outcome you desire is not best achieved through internal processes (which an ET is likely to look favourably on you for exhausting appropriately in any event) and utilise the Advisory, Conciliation and Arbitration Service (ACAS) wisely.

Early conciliation through ACAS is a mandatory step in England and Wales and precedes ET proceedings. ACAS is an independent public body that helps resolve employment disputes and it is ACAS who are first informed of an employee’s desire to make a claim. The clock is, in effect, stopped for the purposes of ET time limits as far as early conciliation is concerned. This is deliberate, so that early conciliation does not inhibit a Claimant’s ability to bring a claim in the ET down the line.

There are two outcomes that result from ACAS early conciliation. One — a settlement agreement is reached and recorded in a ‘COT3 form’. This agreement is final and legally binding, naturally enforceable through the courts. Outcome two is, of course, where an agreement is not reached, at which stage ACAS will issue an early conciliation certificate that provides for a minimum of one calendar month for a Claimant to make their claim to the ET, though this period can be longer5. 

So now, be wary of time again. While the clock stops running when ACAS receive the early conciliation request, it starts to run again the day after the will-be Claimant receives the certificate. It is, however, possible to extend time for one month from the date the certificate is received should the time limit have been reached prior to that. And, should the parties be involved in early conciliation at that point, a further extension of two weeks may be granted. 

I am bringing proceedings. How do I pay for them?

Now I must deliver some good news and some bad news. 

The good news: there are no longer any fees for bringing ET proceedings. 

The bad news: as stated above, ET proceedings are, in the main, not legally aided. Let us start with the exception to that rule. For discrimination claims brought under the Equality Act 2010, legal aid is still available. Of course, a set amount is not guaranteed and any amount awarded has been arrived at via means-testing.

Generally speaking, for any other claim, the other possibilities as regards funding are: 

  • Insurance: it may be that legal cover is covered by an insurance policy;
  • Conditional fee arrangements: known more commonly as ‘no win no fee’ arrangements. In these circumstances, very often, while a client may be required to pay some money up front, the remainder of their legal fees only become payable on the condition the case is won;
  • Crowdfunding: There are online funding platforms for legal action such as CrowdJustice

How long do I have to bring my claim?

Again, it depends. And what it depends on is the type of claim you are bringing. Some of the time limits for the most common claims in the higher education context are:

  • Unfair dismissal — 3 months. Runs from the ‘effective date of termination’, i.e., the last day of the notice period or the date of dismissal should no notice have been given; 
  • Discrimination (on the grounds of a protected characteristic) — 3 months. Runs from the date of the act (or if more than one, the date of the last act) to which said complaint relates;
  • Refusal to permit the exercise of rights — 3 months. Runs from the date on which the exercise of the right should have been permitted;
  • Failure to make payments in respect of annual leave — 3 months. Runs from the date on which the payment was payable;

It cannot be overstated how seriously time limits are taken in the ET. A claim served out of time might as well not be served at all.

Getting the basics right

i) Claim form

There is a standard form, known as an ‘ET1’, on which all ET claims are required to be submitted. While brevity is the soul of a well-thought out claim form, being complete is essential. If time is running short and the relevant limitation period is near, it is best to include all the details insofar as you think they might become relevant. This is to generally discourage parties from pulling rabbits out of hats once a case is underway that could well change the nature of proceedings and delay things unnecessarily. 

If you are drafting an ET1 without legal advice, do not try to sound like a lawyer yourself. It is not necessary to cite case law in a claim form, but any relevant legislation should be mentioned; after all, this is from where your claim derives.6 It is imperative that the ET1 remains clear and to the point. This is not just because this is in-keeping with the spirit of the ET generally, but because in the case of discrimination claims specifically, hearings are typically heard by a panel that includes lay members who, like you, won’t be conversant with legal terminology7. 

ii) Witness statements 

As with the ET1, include everything that is relevant in a witness statement — this requires an astute sense of judgement. Irrelevant material that does not pertain to the claim should be excluded. Material that simply casts aspersions on a person, an employer or their conduct but is otherwise evidentially hollow or irrelevant ought to be avoided. 

To aid the navigation of a witness statement as part of a trial bundle, it may assist the ET to include the page numbers of other documents referred to in the witness statement itself. If the witness statements are exchanged after the bundle has been assembled and this is not possible, it is still wise to annotate your own copy with those numbers. This is simply to assist you in any oral submissions you make. Any Claimant will appear more organised by referring to page numbers as compared to rifling through pages of a bundle.

iii) Other documentation 

There are other types of documents it might be useful to prepare, but it may not be wise to do so in all cases. In all, I consider that you might want to think about preparing four kinds of document for a hearing: 

  1. Draft a chronology: the Respondent (assuming they are legally represented) will have almost certainly prepared a chronology of events at some stage. They are likely to share their chronology with you, and you are at perfect liberty to dispute aspects of it. But crucially, reconciling theirs with your own as part of this exercise lends itself to greater accuracy overall than having not prepared a chronology and only reflecting on your timeline of events after having seen the other side’s.
  2. Skeleton argument: this is one I would potentially leave out if you are a) going it entirely alone without any kind of legal assistance (unwise); and b) are unfamiliar with what a skeleton argument is and how to write one. If you are in this camp, in brief and for completeness, a skeleton argument is an advocate’s roadmap for how they intend to make their arguments before a court or tribunal. They routinely include case law and legislation, which no layperson should be expected to comfortably (and reliably) cite. The reason why I have suggested it might be wise to include one is because skeleton arguments provide a summary of your main points. Trial bundles can get very large, and skeleton arguments (the clue being in the name), get to the bare bones of a case. 
  3. Cross-examination: if the Respondent is relying on witness evidence that you contest, you will generally be allowed to cross-examine that witness. That is, you may ask them a series of questions to test their version of events against your own case. There is no getting away from the fact that cross-examination is a skill that laypeople are not trained in, so the more preparation you do of ‘what you want’ out a witness, the better. It can be as obvious as putting to the witness things they have been mistaken by that undermine your case, but again, only elicit from them that which is necessary and relevant. No more, no less. The enmity that surrounds many employment disputes has a habit of leeching into embittered submissions and questions from unrepresented Claimants. So, the more planning that goes into what is precisely needed from a witness, the more controlled any cross-examination will be.
  4. Written closing submissions: the obvious downside to providing a written version of closing submissions is that the Respondent will be able to see exactly your direction of travel from the word go. However, because oral submissions are likely to be difficult for an unrepresented Claimant to make at least as well as their adversary (a professional advocate), there is, in my view, an advantage for an unrepresented Claimant to providing written closing submissions. It will also do no harm for the ET to have your arguments to hand when considering their decision after the oral submissions have been made. The last word, as it were. 

It is common for unrepresented Claimants in the ET to not put their case properly. Do take the steps you are able to avoid this, not least because Respondents may then be allowed to deal with weighty and substantive issues in any re-examination, thus giving them a second bite of the cherry. 

To summarise, the general approach should be to ascertain what the main issue in your case is, what the correct law to be applied is on the facts and what the correct legal test is for what you seek to prove. I assume that, in my next comment, being in the higher education sector means readers of this piece will have access to literature many other Claimants in the ET would not. It is with this in mind that taking a look at the latest editions of the following practitioner texts could be of assistance: 

  • Butterworths Employment Law Handbook;
  • Tolley’s Employment Law Handbook; 
  • Discrimination Law Handbook. 

It’s all said and done — my case is settled

As with many cases in the ET, and civil disputes more generally, a common and desirable outcome is for a case to settle in lieu of there being a clear winner and loser. 

In the event of reaching a settlement, it is common for issues around Non-Disclosure Agreements (NDAs) or confidentiality clauses buried within the settlement agreement itself to arise. Quite simply, a settlement agreement and an NDA are not mutually inclusive — they do not go hand in hand. In this way, a Claimant does not have to sign an NDA in addition to their settlement agreement. I make this point here because confidentiality is routinely found to be a key priority in disputes with Universities which regard their reputation as being especially important.

A settlement agreement is, in effect, a contractual promise not to bring (further) action in relation to the matter at hand. An NDA is a separate, legally distinct contractual promise not to speak about the matter or the settlement of it. They are not the same. 

So, if an employer floats the use of an NDA in the wake of proceedings, there are options: 

  1. Refuse to sign any NDA at all: blanket refusal is not necessarily in the spirit of dispute resolution, so this is probably a strategy to avoid. 
  2. Refuse to sign the NDA in its current form: NDAs do not come in one size and it is in the nature of a contract that its terms are capable of negotiation. NDAs can be as narrow as requiring a person to be silent about the sum of money they received to waive their right to bring action or they can be as broad as requiring a person to be silent about the issues that led to the dispute in the first place. 
  3. Request additional money for signing an NDA: this is because you are giving up something additional as well as your right to bring proceedings, i.e., your right to talk about (some aspect of) the dispute or its settlement. It follows that any additional contractual obligations that someone enters into with their (former) employer should be met with additional money from the employer. 

It should be noted that even at their broadest, an NDA can never prevent someone from making a whistleblowing complaint (known as a ‘protected disclosure’) or reporting an alleged crime to the police. Additionally, even if the substance of the original complaint falls within the scope of the NDA, it is perfectly possible for an NDA to carve out an ability to speak to specific people or specific categories of person about the issue. This might include a support network, or legal or medical professionals.

It is impossible to cover everything anyone would need to know about bringing a claim in the ET in one brief introductory document. However, I hope that what I have had to say has gone some way to demystify a process that can often feel lonely and isolating. Nobody should enter legal proceedings lightly, and always seek legal advice about doing so where possible. 

Appended below is a list of resources for advice and representation that can be accessed at little to no expense. Employment law is known for its complexity — it is a tricky beast to tame even for seasoned practitioners. Taking on Goliath is the stuff of legend for a reason. 

That being said, it is not as though higher education Respondents overwhelmingly win in the ET. Actually, a recent string of cases by chance demonstrate the sector more broadly is on a bit of a losing streak in the setting8. Or, should I say, a winning streak for David. 

Further resources

  • Free Representation Unit — FRU provided representation in social security and employment tribunals and the Employment Appeal Tribunal (EAT);
  • Advocate — finds otherwise unrepresented individuals free legal help from barristers;
  • Protect — the UK’s leading whistleblowing charity that provides whistleblowing advice;
  • Acas — gives employees and employers free, impartial advice on workplace rights, rules and best practice; 
  • Citizens Advice — offers free, confidential advice to people on their rights and responsibilities. 
  1. Discrimination cases are the exception to the rule that legal aid is not available for employment law matters, though crucially this does not extend to representation in such claims. This has been the case since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force (see Schedule 1, Part 1, para. 43) ↩︎
  2. Autoclenz Ltd v Belcher & ors [2009] EWCA Civ 1046; Consistent Group Ltd v Kalwak [2008] IRLR 505, [2008] EWCA Civ 430 ↩︎
  3. Uber BV and others v Aslam and others [2021] UKSC 5, [2021] ICR 657 (SC) ↩︎
  4.  Two Oxford University academics, Rebecca Abrams and Alice Jolly, brought a case before the ET concerning employment status. The ET found that their contracts with the University effectively denying them workplace rights were a “sham” and Abrams and Jolly were were to be classed as employees.  ↩︎
  5. As a general rule, Claimants are prevented from bringing a claim before the ET without an early conciliation certificate. But strictly speaking, the ACAS scheme only requires that parties are offered early conciliation. In other words, there is no obligation to engage, and circumstances which would clearly fall under this exception are where one or both parties refuse to engage or where the employer has become insolvent. Another important exception is that, where a set of facts give rise to a number of separate though related claims, separate attempts at early conciliation are not required in respect of each. It is in the spirit of the ET’s jurisdiction to manage cases at their discretion and this includes in their approach to early conciliation ↩︎
  6. This does not need to be any more than a mention. By way of example, this could be along lines of: “The Claimant believes that his dismissal on grounds of conduct is both substantively and procedurally unfair. In the circumstances, the Claimant claims compensation for unfair dismissal under section 98 of the Employment Rights Act 1996.” ↩︎
  7. This is to ensure a balanced decision reflective of both legal principle and workplace experience ↩︎
  8. See recent cases of: Professor J McCambridge v The University of York [2023]; Miller v University of Bristol [2023]; A Jolly and R Abrams v The Chancellor, Masters and Scholars of The University Of Oxford [2023]; Phoenix v The Open University [2024]. ↩︎