Key things to think about before bringing an Employment Tribunal Claim
This resource is for use by advisers who have some knowledge of employment law. It will also be helpful to unrepresented individuals who want to understand more about the process for bringing a claim in the Employment Tribunal, although ideally please do seek legal advice before bringing any claim. You can call the Working Families helpline to speak to one of our advisors.
Please also do also look at our further advices 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.
Gather information and ask questions
It is important to gather information about the complaint that you want to bring, so that you can try to work out at an early stage whether your legal rights have been breached, and what your options might be. Sometimes this will mean that you need access to information which only the respondent has. For example, you might want to try to find out whether or why a male applicant was preferred for a job application; whether you were the only person who was made redundant and why; or you may want to know how many employees of that company have brought discrimination claims in the past 10 years.
Questionnaires were part of a statutory process which was used until 2014 by employees to get information from their employers about their claim (either before they brought their claim, or once it had been issued at an Employment Tribunal).
Although this specific process has now been abolished, it is still possible to ask a Respondent questions, and any failure by a respondent to answer reasonable requests for information is likely to have some negative influence on the Employment Tribunal’s view. This is partly because the more information that is shared early on in a potential case, the more likely it should be that the parties can reach an agreement before getting to Court.
For more information, read our page on asking an employer questions about discrimination.
The Role of Acas and Early Conciliation
You must tell Acas first before making a claim to an Employment Tribunal about a workplace dispute.
Almost all Employment Tribunal claims can only be brought if they comply, before they are started, with rules on pre-claim conciliation by ACAS.
This pre-claim process is called Early Conciliation.
Early conciliation is when Acas talks to both you and the respondent about your dispute. It gives you the chance to resolve matters, and come to an agreement without having to go to an employment tribunal. Acas can help you settle claims with a legally binding agreement called a COT3.
See also our advice pages: What is a COT3 and Time Limits for bringing Employment Tribunal claims.
Tribunal fees, Costs and Compensation
As of 26 July 2017 it is no longer necessary for a claimant wishing to make a tribunal claim to pay a fee. (For background, you may want to read our article on Tribunal fees).
There are potentially costs associated with bringing an Employment Tribunal claim, which you should bear in mind. Please see our detailed advice page on Costs in the Employment Tribunal.
Many people think, because of misleading reports in the press, that the amounts of compensation which an Employment Tribunal can award are much higher than they are in reality. It is best to think at an early stage about how much your claim might be worth. Please see our detailed advice page on how Employment Tribunals calculate compensation, and how you would need to prepare your case to be able to claim the maximum compensation available for the claim you bring: 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, the individual avoids all of the disadvantages of bringing a case (see below), and may achieve an outcome that the Employment Tribunal could not order, such as an agreed reference, or an apology.
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; stress – it can be very stressful and upsetting to litigate against an employer, and to be accused of not telling the truth, or exaggerating how upset you are about treatment at work, and to “re-live” the unfair treatment you have experienced; 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.
Be realistic about the weak points in your potential claim, or about things which you can’t provide evidence of
Before you bring 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.
Be realistic about how much compensation you might receive if you are successful in your claim
You should research at an early stage what your claim might be worth and how you would prove this. It is best to have a conservative estimate of what you might achieve in compensation if you win, and to consider how likely it is that the employer will pay (or be able to pay) any tribunal award if you win. For example, is your employer facing insolvency?
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 not to bring a claim
After researching what is involved in bringing a claim, and hopefully receiving advice from someone who understands the law and legal system about the advantages and disadvantages of an Employment Tribunal claim, you may decide that the right thing for you is not to take any legal action against the employer. This may also be a decision you take on the basis of your circumstances, for example you want to concentrate on a new job. You may decide that what you want from your employer is an apology, and this is not something which the Employment Tribunal process would deliver, even if you were successful.
Mediation is voluntary, and usually involves a meeting with the individual, the employer and an independent (neutral) mediator. The mediator works with the parties to try and help both agree a way forward. It can be a way of improving communication and reaching an agreed outcome, rather than entrenching positions, as often happens when there is a claim.
Mediation can be a way to mend the relationship between an employee and employer, where possible. It is usually less formal than the process around a Tribunal claim, more flexible, and confidential. It can either lead to a non-binding outcome, or in some cases, can lead to a legally binding settlement, where lawyers draw up an outcome 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 have made your claim within three months minus a day of the act you are complaining about. If time limits are not complied with, a claim is likely to be time barred, i.e. it will not be allowed to proceed. Time limits must be complied with even if attempts are being made to resolve matters by a grievance and/or through mediation. Complying with time limits protects your position, so it is best to speak to Acas early to make sure you 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 as a result you will also lose your advantage in potentially 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 that 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, Wales and Scotland. If you live in another part of the UK, the law may differ. 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.
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.