Things to think about before bringing an Employment Tribunal Claim
This resource is designed for advisers with some knowledge of employment law. It may also be helpful for unrepresented individuals who want to understand the process of bringing a claim to the Employment Tribunal. However, you should ideally seek legal advice before bringing any claim. You can call the Working Families helpline to speak to one of our advisors to understand your potential employment rights. However, it is outside the scope of our service to analyse and advise you as to what sort of claims you should in fact bring, the strength or weakness of your claim or whether you will be successful in your claims against your employer.
Please also look at our additional advice pages about the Employment Tribunal and how it works, for example: How to Prepare for an Employment Tribunal, Compensation in the Employment Tribunal, Costs in the Employment Tribunal, and Legal Aid and Sources of Advice.
Gathering information and asking questions
It is important to gather information about the complaint you wish to bring. You can then work out at an early stage whether your legal rights have been breached and what your options might be. Sometimes this may require access to information that you do not currently have. For example, you might want to ask a question such as why a male applicant was preferred for a job; whether you were the only person made redundant and why; or how many employees of the company have brought discrimination claims in the past 10 years.
Questionnaires were part of a statutory process used until 2014 to obtain information from employers about claims (either before filing a claim, or once it had been issued at an Employment Tribunal). Although this specific process has now been abolished, you can still request information from the respondent. A respondent’s failure to respond to reasonable requests for information can negatively influence the Employment Tribunal’s view of their case. This is partly because the more information shared early on, the more likely the parties can reach an agreement before getting to Tribunal.
For more information, read our page on asking an employer questions about discrimination.
The Role of Acas and Early Conciliation
You must contact Acas before making a claim to an Employment Tribunal about a workplace dispute.
Almost all Employment Tribunal claims can only be brought in the Employment Tribunal if they comply with rules on pre-claim conciliation by Acas. This pre-claim process is called Early Conciliation.
Early conciliation involves Acas speaking with both parties about the dispute. It gives you the chance to reach an agreement with your employer without having to go to an Employment Tribunal. Acas can help you settle claims with a legally binding agreement called a COT3.
See our advice pages: What is a COT3 and Time Limits for bringing Employment Tribunal claims.
Tribunal fees, Costs and Compensation
There are no fees to pay to bring a Tribunal claim. (For background, you may want to read our article on article on Tribunal fees).
There are potential costs associated with bringing an Employment Tribunal claim, which you should consider. Please see our detailed advice page on Costs in the Employment Tribunal.
Many people mistakenly believe, due to misleading reports in the press, that the amounts of compensation which an Employment Tribunal can award are much higher than they actually are. It is best to understand at an early stage how much your claim might be worth. Please see our detailed advice pages on how Employment Tribunals calculate compensation, and consider how you would need to prepare your case to be able to claim the maximum compensation available: Compensation in the Employment Tribunal.
Things to consider before bringing a Tribunal claim
Before making a claim please consider:
Trying to resolve matters amicably with the employer first
If this is done early on, you avoid the need for a tribunal claim and may achieve outcomes that an Employment Tribunal cannot order, such as an apology or the agreed wording of a reference.
Please read our detailed advice pages on the process for bringing a grievance at work, and the pros and cons of grievances.
The advantages and disadvantages of bringing a claim
Bringing a claim has many disadvantages for a claimant including:
- paying fees (for example for expert reports, or for legal advice);
- time — tribunal claims can take over a year to reach a final hearing date and this can be much longer for complex discrimination cases;
- stress — litigating against an employer can be very stressful and upsetting, especially if you face accusations of dishonesty or exaggeration;
- lack of certainty regarding outcome — it is impossible to reliably predict the outcome of a claim, no matter how strong it may appear to be;
- costs, and
- publicity.
Are you permitted to bring a claim?
Before pursuing a claim in the Employment Tribunal, it’s essential to ensure that you meet all the necessary requirements. Here’s what you need to consider:
a) Employment Status
Determine if you have the right employment status to bring the claim. Some claims, like unfair dismissal, can only be filed by employees, not workers. Employee shareholders have limited rights compared to employees but more than workers. Definitions of “employed” and “in employment” may vary for different types of claims, such as under TUPE (Transfer of Undertakings) or the Equality Act 2010. Special protections are in place for agency workers and zero-hours workers. See our page on employment status and our page on TUPE.
b) Length of Service
Check if you have the required length of service to bring your claim. For some claims, there’s a minimum period you need to have worked for your employer, and this period must be continuous. Ensure that your employment has been unbroken during the relevant time frame.
c) Jurisdiction
Confirm that your claim falls within the Tribunal’s jurisdiction. Not all claims are suitable for the Tribunal. For example, the Tribunal does not handle breach of contract claims over £25,000 or certain types of injunctive relief. Additionally, issues might arise if you or your employer is based outside England, Wales, or Scotland. Jurisdiction can be complex in cross-border cases, such as when working abroad or if there are cross-border employment relationships.
d) Excluded Claims
Verify that your right to bring the claim hasn’t been excluded. This might occur if you’ve already settled the issue through a settlement agreement or if you’ve previously filed a claim on the same matter.
Make sure to address these aspects carefully to ensure your claim is valid. If you’re unsure about any of these points, consider seeking legal advice to confirm your eligibility to proceed with your claim.
Identify the nature of your claim
Determine the specific issue you’re addressing with your claim. Common claims include:
- Unfair dismissal: When you believe you were terminated from your job without a fair reason.
- Discrimination: If you were treated unfairly because of characteristics such as pregnancy, maternity, sex, race, gender, disability, or age.
- Wages and employment rights: Claims related to unpaid wages, holiday pay, or other statutory rights.
Each type of claim has different requirements and protections, so identifying the exact nature of your claim is essential.
It can be challenging to amend your claim once it has been filed. If you realise after filing that you want to add new details or change the basis of your claim, you may face additional hurdles. The Tribunal has specific rules about making changes. This can delay your case and complicate the process. Therefore, ensure your claim is accurate and complete before you file your claim to avoid potential issues later on.
Be realistic about the weak points in your potential claim
Before bringing a claim, you need to think about the strengths and weaknesses of your case to help decide if it is worthwhile bringing a case at all. Consider the evidence you have and how it may affect the claim.
Be realistic about compensation
Research at an early stage what your claim might be worth and how you would prove it. It is crucial to have a conservative estimate of the potential compensation you could be awarded if you win, and also to consider the likelihood of your employer paying (or being able to pay) a Tribunal award. For example, if your employer is facing insolvency this could impact the claim’s viability. See our page on insolvency for more information on your options.
Please see our detailed advice page on how to work out what compensation you might be able to win if you are successful in a claim.
The best thing for you may be to not bring a claim
After researching what is involved, and hopefully receiving legal advice about the advantages and disadvantages of an Employment Tribunal claim, you may decide that pursuing a claim against your employer is not the best option for you. You might prefer to focus on finding a new job or seeking a settlement including an apology or agreed reference.
Consider Mediation
Mediation is voluntary, and usually involves a meeting between you, the employer and an independent (neutral) mediator. The mediator works with the parties to help them both agree a way forward. It can improve communication and help parties reach an agreed outcome, rather than entrenching positions, as often happens with a claim.
Mediation can mend the relationship between you and your employer, if possible. It is usually less formal than the Tribunal process, more flexible, and remains confidential. It can either lead to a non-binding outcome, or in some cases, a legally binding settlement where lawyers draft an agreement which both parties sign.
Please read our detailed advice page on negotiating a settlement.
Time limits are crucial
The rule of thumb is that you need to bring your claim within three months minus a day of the act you are complaining about. If you miss this deadline, your claim is likely to be time barred, i.e. it will not be allowed to proceed. Time limits must be met even if you are attempting to resolve matters through internal resolution methods including a grievance, appeal or mediation. Complying with time limits protects your position, so it is best to speak to Acas early to understand the time limits and how Early Conciliation works.
If the time limit is missed, you will lose your right to bring a claim, and potentially your leverage on negotiating a settlement. For more information, read our page on time limits and Early Conciliation.
Early Conciliation with Acas is the gateway to the Tribunal
See notes above on the importance of contacting Acas in time so that you can start an Employment Tribunal claim.
Costs Orders and other financial orders can be made against you
Costs are not normally awarded against the claimant in the Employment Tribunal, but they can be. You could also be ordered to pay a Deposit Order if the Tribunal believes your case has little prospect of success. For more information, read our pages about costs in the Employment Tribunal, and on Deposit Orders and other types of Orders that can be made in the Tribunal.
If you decide to bring an Employment Tribunal claim
You may find it helpful to read our detailed advice page on How to Prepare for an Employment Tribunal Claim.
Watch this video about Employment Tribunals
This helpful video has been produced to help unrepresented claimants learn more about how Employment Tribunals work. The information in the video is particularly helpful if you will have a “remote” hearing, that is a hearing by video link.
This advice applies in England and Wales. If you live in another part of the UK, the law may differ. Although there are a single set of rules which govern the whole of Great Britain covering Tribunal practice and procedure, there are differences in the way that Scottish tribunals exercise their discretion regarding procedure. For guides, information and resources about employment tribunals in Scotland, see The Scottish Courts and Tribunals Service. Please call our helpline for more details. If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.
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The information on the law contained on this site is provided free of charge and does not, and is not intended to, amount to legal advice to any person on a specific case or matter. If you are not a solicitor, you are advised to obtain specific legal advice about your case or matter and not to rely solely on this information. Law and guidance is changing regularly in this area.
We cannot provide advice on employment rights in Northern Ireland as the law is different. You can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.