Bringing a Employment Tribunal Claim

Bringing an Employment Tribunal (ET) claim in England and Wales is a structured legal process governed by the Employment Tribunal Procedure Rules 2024 (ET Rules 2024) and Presidential Practice Directions. Understanding each stage, from initial conciliation to post-hearing procedures, is crucial for claimants. This guide provides a comprehensive overview of the ET process, incorporating recent changes and relevant case law.

1. Starting a Claim: Early Conciliation with Acas

Before an Employment Tribunal claim can typically be formally lodged, the claimant must first engage in early conciliation with the Advisory Conciliation and Arbitration Service (Acas).

• Purpose of Conciliation - Acas aims to facilitate discussions between the claimant and the respondent (usually the employer) to help them reach an agreed settlement.

• Certificate Requirement - While participation in conciliation is not obligatory, if a resolution isn't reached, Acas issues an early conciliation certificate with a unique number. This number must be included on the ET1 claim form when it is submitted.

• Time Limit Extension - The early conciliation process can extend the usual time limit for presenting a claim, which is a critical consideration for claimants. It is important to note that this process specifically applies to England and Wales, as procedures in Scotland and Northern Ireland differ.

2. Completing the ET1 Claim Form

The ET1 claim form is the official document used to initiate an employment tribunal claim. It requires specific and comprehensive information to be validly presented:

• Who the claim is against: Typically the employer, though specific individuals may also be named.

• The early conciliation certificate number(s).

• The type of claims being brought: For example, unfair dismissal or discrimination.

• The remedy sought: Such as the amount of compensation.

• The facts upon which the complaint is based.

The online ET1 claim form is structured into three sections: Section 1: the claimant's details; Section 2: employment and respondent's details; and Section 3: details of the claim. Claimants have the option to upload a separate document detailing their claim in Word, PDF, or RTF format and attach it to Section 3.

3. Crucial Deadlines and Time Limits

Time limits for claims are exceptionally strict and are taken very seriously by the tribunal.

• Most claims must be received by the tribunal within three months of the event complained of. This three-month period is extended by any time spent on the Acas early conciliation process.

• If a claimant misses the deadline, the tribunal is very likely to reject the claim.

• The deadline to present an ET1 runs until midnight on the last day for presentation. This contrasts with civil courts where documents must be received by 4 pm.

• Extension for Non-Working Days: If a time limit set out in an ET rule, Practice Direction, or tribunal order would expire on a non-working day (defined as any day except a Saturday, Sunday, Christmas Day, Good Friday, or a bank holiday), the time is extended to midnight on the next working day.

• Statutory Time Limits: However, it is crucial to note that this extension for non-working days does not apply to how the statutory time limits for presenting a claim are calculated. These time limits are set by statute, not the ET Rules. For example, in Miah v Axis Security Services Ltd UKEAT/0290/17, an ET1 posted on a Friday with a time limit expiring on Sunday was held to be out of time when date-stamped on Monday. Had it been posted on Thursday, it would have been deemed received on Saturday (in time) in the ordinary course of post, even if stamped on Monday.

4. Methods of Submitting Your ET1 Claim

As of 21 May 2025, the Presidential Practice Direction outlines four permitted methods for claimants to present their ET1:

• Online Submission

  • The HM Courts and Tribunals Service (HMCTS) provides an online submission service.

  • An ET1 submitted online is considered presented on the date it is successfully submitted on the tribunal website, not when the tribunal office physically receives it from the website host. An automated message confirming successful submission provides a "reasonable expectation" of presentation.

  • Case Law: In Tyne and Wear Autistic Society v Smith [2005] ICR 663, the EAT held that an ET1 is presented on the date of successful submission on the website, not later receipt by the tribunal. In Akhavan-Moossavi v Association of London Government UKEAT/051/04, the EAT guided tribunals that if a claim isn't presented in time, the burden of proof is on the claimant to show it was not reasonably practicable to do so. The test is whether it was reasonably feasible to present in time, considering all circumstances, including any substantial default by the claimant or their advisers, the nature of advice given, and the substantial cause of failure. Tribunals should also assess if there was a "reasonable expectation" that the application would arrive in time. For litigants in person, tribunals should account for their potentially limited understanding of tribunal procedures and online processes.

• Postal Submission

  • Claimants can submit an ET1 by post to the Employment Tribunal Central Office.

  • For England & Wales, the current address is PO Box 11225, Loughborough, LE11 9PX.

  • The form for postal submission can be downloaded from HMCTS.

  • Case Law: When sent by post, a document is deemed received on the day it would be delivered in the ordinary course of post. In Consignia plc v Sealy [2002] ICR 1193, the "ordinary course of post" was defined as the second day after first-class posting, excluding Sundays, public holidays, Christmas Day, and Good Friday, but including Saturdays.

• In-Person Delivery

  • Claimants can present a claim in person at designated regional tribunal offices. There are 10 such offices in England and Wales, with addresses specified in the schedules to the Practice Directions.

  • The tribunal office does not have to be open for a claim to be presented; pushing a form through a letterbox of a closed tribunal office on the last day of a time limit will still be in time, as presentation is a "unilateral act". However, if there's no physical way to deliver the form (e.g., no letterbox), it could be argued that timely presentation was not reasonably practicable.

• Email Submission (Exceptional Circumstances)

  • An ET1 can only be presented by email exceptionally, where there is a fault with the online submission service.

  • A claim submitted by email is not validly presented unless accompanied by a screenshot of the error message generated by the online submission service, confirming a system malfunction at the relevant time.

  • The email address for submission is etsubmission-engwal@justice.gov.uk. This email address is strictly for ET1 submissions and only when the online system fails.

  • Case Law: In Initial Electronic Security Systems Ltd v Avdic UKEAT/0281/05, the EAT held it is reasonable for the sender of an email to expect it to arrive within a very short time after being sent. An email sent eight hours before the midnight deadline was deemed to have a reasonable expectation of timely delivery.

  • Prior to 21 May 2025, email was not included as a method for presenting an ET1.

• Methods Not Permitted

  • Claims cannot be presented by fax. The Practice Directions do not include fax as a method for presenting an ET1.

  • Case Law: In Morgan v The Shield Guarding Company Ltd ET/2201362/14, an employment tribunal held that a claim was not validly presented when faxed, as the permitted methods are not illustrative and fax was not listed.

5. Understanding the "Deemed Date of Delivery"

When an ET1 or other document is sent to the Employment Tribunal, its deemed date of receipt is critical for time limit calculations.

• If sent by post, it is deemed received on the day on which it would be delivered in the ordinary course of post.

• If sent by electronic communication (online or email), it is deemed received on the day of transmission. This allows electronic submissions until midnight on the final day.

• If delivered directly or personally, it is deemed received on the day of delivery. These rules are understood to apply to the presentation of an ET1 under the Practice Directions.

6. What Happens if Your Claim is Not Presented Correctly?

A claim that is not presented in accordance with the applicable Practice Direction will be rejected. It will be returned with a notice of rejection explaining the reasons. As mentioned, if a claim has not been presented in time, the burden of proof is on the claimant to show that it was not reasonably practicable to do so.

7. Responding to a Claim: The ET3 Form

Once an ET1 is received, the tribunal sends it to the respondent (the business or person against whom the claim is made), along with a response form known as an ET3.

• Deadline - The respondent must send their response and the completed ET3 back to the tribunal within 28 days of the date on which the tribunal sent the ET1.

• Content - As a minimum, the response must confirm the name and address of the respondent and whether they intend to contest the claim. Usually, a detailed response is provided either in the form or as a separate attached document.

• Late Submission - If the response is submitted late, it will typically not be accepted, and the tribunal may issue a “default judgment”, deciding the case without hearing the respondent's defence.

• Methods of Presentation for ET3 - Since 21 May 2025, respondents can present their ET3 using four methods, mirroring those for ET1s: online (via MyHMCTS or pre-existing online system), by post, in person, or exceptionally by email if both online services fail. Prior to this date, email was a permitted method for ET3s.

8. Case Management Orders and Preliminary Hearings

After the ET3 is submitted, the tribunal will issue "orders" or "directions" to guide the parties in preparing for the hearing.

• Simpler Cases - For straightforward claims (e.g., deductions from wages, unfair dismissal), the tribunal will schedule a hearing date and issue written orders.

• Complex Cases - In more complex cases, parties will be asked to attend a Preliminary Hearing. These are typically private hearings, often held by telephone. The tribunal will discuss the claims and issues to be decided, fix the final hearing date, and make orders for preparation.

• Typical Orders - These orders often include deadlines for:

  • The claimant to provide a "schedule of loss" (a calculation of their claimed remedy).

  • Both parties to exchange "disclosure" (lists and copies of all relevant documents, which can include letters, notes, emails, and computer files, regardless of confidentiality).

  • The parties to agree upon and prepare a combined "bundle" of documents for the final hearing (usually prepared by the respondent, with an index and page numbers).

  • Both parties to exchange written witness statements for every witness they intend to call, cross-referencing documents in the bundle.

• Compliance - It is vital to comply with these orders and their deadlines. Persistent failure to do so can lead to parts or all of the claim or response being "struck out".

• Public Preliminary Hearings - In some cases, an additional public Preliminary Hearing may be held to decide issues that could affect which claims can be heard. These often take place online by video. They might consider whether a claim (or response) should be struck out (e.g., if it's out of time or not within the tribunal's jurisdiction) or decide preliminary points such as employment status, eligibility for unfair dismissal (e.g., two years' service), or disability for discrimination claims.

9. Overview of the Final Hearing

The final hearing is where the tribunal will hear the evidence and make a decision on the claim.

• Location: -Final hearings may take place in the tribunal building or online by video.

• Tribunal Panel - The hearing is chaired by an Employment Judge, who is legally qualified. In more complex cases (such as discrimination or whistleblowing claims), there will also be two lay members on the panel: one with a management or HR background and one with a trade union or employee representative background.

• Representation - Parties can represent themselves or be represented by another person, who does not necessarily need to be legally qualified. However, it is common for parties to be represented by a barrister or solicitor.

• Witnesses -Witnesses are allowed to attend all of the hearing.

• Usual Order of Events -

  • The tribunal usually begins by reading the witness statements and key documents.

  • Parties or their representatives may make opening statements, outlining the issues.

  • Each party then presents its evidence by calling witnesses.

  • Each witness will be cross-examined by the other party, followed by a brief re-examination by the party who called them.

  • The tribunal has an active role and often asks its own questions, especially if a party is unrepresented.

  • After all evidence is heard, both parties make closing submissions.

  • The tribunal adjourns to make a decision, which may be given orally on the same day or in a written decision sent later.

  • If the claim succeeds, a remedy hearing will be held to decide compensation or other remedies, which may occur at the end of the main hearing or on a separate date.

• Public Access - Final hearings are generally held in public, and members of the press and public can attend, even if online. Witness statements and document bundles must usually be made available to the public. In rare circumstances, the tribunal can order that evidence, party names, or witness names remain confidential.

10. After the Hearing

Following the final hearing, several outcomes and potential next steps are possible.

• Judgment - The tribunal's written judgment will be sent to the parties and published on a searchable online database. If the full decision was given orally, the judgment will be a short document confirming the result. If a full written judgment or reasons are requested, it will detail the facts and evidence.

• Costs - Generally, parties bear their own legal costs and cannot recover them even if they win. The tribunal has the power to order one party to pay the other's legal costs in limited circumstances (e.g., where a party has acted unreasonably), but such awards are not standard practice.

• Appeals - If a party believes the tribunal's decision is wrong, they may appeal to the Employment Appeal Tribunal (EAT). Appeals must usually be on points of law (e.g., the tribunal applied the law incorrectly), not merely a disagreement with the decision. An appeal must typically be sent within 42 days of when the written reasons for the judgment were sent to the parties.

• Reconsideration - It is also possible to request a reconsideration of a tribunal decision, for instance, if there has been an obvious mistake. The tribunal will not reconsider merely due to disagreement with the result. A reconsideration request must be made within 14 days of when the written judgment or full written reasons were sent to the parties.

11. Settlement Options

A tribunal claim can be settled at any point during the process, offering various avenues for resolution.

• Acas Conciliation - Acas offers conciliation services throughout the proceedings and can formalize a settlement in a legally binding COT3 agreement.

• Judicial Mediation - In more complex cases, the tribunal may offer judicial mediation, where a Judge helps facilitate settlement discussions.

• Alternative Dispute Resolution (ADR) - The tribunal may also request parties to attend an ADR appointment shortly before the hearing to explore settlement.

• Private Mediation - Parties can engage a private mediator to assist with discussions.

• Direct Discussion - Parties are free to discuss settlement directly between themselves at any point, even during the final hearing.

• Settlement Agreement - Unless Acas is involved through a COT3, parties should use a legally binding settlement agreement, which must contain specific provisions and requires the claimant to obtain independent legal advice.

12. Practical Tips for Submission and Throughout the Process

• Allow for Unforeseen Delays - Parties should anticipate issues such as IT outages, power cuts, and postal strikes, and aim to present their claim or response well before the time limit expires to avoid disputes over timeliness.

• Retain Confirmation - If submitting electronically (online or email), retain a copy of any submission confirmation receipt or evidence of the time the document was sent. Tribunals instruct parties not to send a confirmatory second copy by post for electronic submissions.

• Use the Correct Portal - Professional representatives must use MyHMCTS for online submissions, while litigants in person should use the CitizenUI portal.

By carefully adhering to these guidelines and understanding the detailed requirements for ET1 submission, subsequent procedural steps, and deadlines, claimants can significantly improve the chances of their employment tribunal claim being validly presented and successfully navigated in England and Wales.