Employment Tribunal Preparation Toolkit (Comprehensive Guide)
1. Understanding the Employment Tribunal (ET)
The Employment Tribunal is a specialist court that adjudicates disputes between employers and employees regarding employment rights. It's less formal than a civil court but still follows strict legal rules and procedures. Claims often involve unfair dismissal, discrimination, whistleblowing detriment, unlawful deduction from wages, or breach of contract. The ET's role is to provide a forum where your legal rights at work can be impartially assessed.
2. Time Limits and Continuing Acts
This is the most important rule. Failing to meet the deadline is the most common reason claims are rejected.
2.1. The Basic Time Limit Most claims must be submitted within 3 months minus 1 day of the incident.
Unfair dismissal: The deadline runs from the Effective Date of Termination (EDT)—the last day of your employment.
Discrimination: The deadline runs from the date of the last act of discrimination you are complaining about.
Unlawful deduction of wages: The deadline runs from the date of the last deduction in a series.
Example: If you were dismissed on June 10th, the deadline for your claim is September 9th.
2.2. The 'Continuing Act' Doctrine Where discrimination or harassment is not a single event but a series of related incidents over time, it may be considered a 'continuing act'. This is a crucial concept.
How it works: If successful, the 3-month time limit runs from the date of the very last event in the sequence, bringing all the earlier incidents back "in time."
Key Case Law: In Hendricks v Metropolitan Police [2003], the Court of Appeal held that a series of related events could form a continuing act, even with gaps between them, if they were linked by a common discriminatory purpose.
Strategic Tip: In your ET1 claim form, you must explicitly state that the events are connected and form a "continuing act." For example: "The incidents listed from [Date] to [Date] are not isolated but form a continuing act of harassment against me."
2.3. How ACAS Early Conciliation "Stops the Clock"
Before you can submit a claim (the ET1 form), you must contact the Advisory, Conciliation and Arbitration Service (ACAS) for Early Conciliation (EC).
"Stopping the Clock": The day you submit your EC form, the time limit for your claim is paused. The clock restarts when ACAS issues your EC certificate. The time you have left is then recalculated.
The Certificate: The certificate contains a unique reference number that is mandatory for your ET1 form. Without it, your claim will be rejected. Always keep this certificate safe.
3. Navigating ACAS Early Conciliation (EC)
3.1. What It Is ACAS EC is a compulsory first step for most tribunal claims. It provides a formal window for you and your employer to settle the dispute with the help of a neutral ACAS conciliator, avoiding the need for a tribunal hearing.
3.2. The Process
Submission: You submit a form online or by phone to ACAS.
Contact: An ACAS officer will contact you to confirm details and then reach out to your employer.
Conciliation: The conciliator will pass messages and offers between both sides for a period of up to 6 weeks. They cannot take sides or give legal advice.
Outcome: If a settlement is reached, it's recorded in a legally binding document (a COT3). If not, ACAS issues the EC certificate, and you are free to proceed to the tribunal.
3.3. Pros and Cons
Pros: It’s free, confidential, and can lead to a quick, clean break with a settlement payment and an agreed reference.
Cons: An employer may use it as a 'fishing expedition' to assess the strength of your case or to simply run down the clock. You are not obligated to engage in lengthy discussions if the employer is not being serious.
4. The Core Tribunal Documents
4.1. The ET1 Claim Form This is the form you use to formally submit your claim. It is your first and most important opportunity to set out your case.
What it must include:
A concise summary of the issues and a clear chronology of events.
The legal basis for your claim (e.g., "direct race discrimination under the Equality Act 2010, s.13").
The remedies you are seeking (e.g., compensation for financial loss and injury to feelings, reinstatement).
Your ACAS Early Conciliation Certificate Number.
Strategic Tip: Be factual and objective. Avoid emotional language. For complex cases, it is common to write, "Please see the attached appendix for a full chronology of events," and attach a separate, detailed document.
4.2. The ET3 Response Form This is the employer's formal reply to your ET1. They must submit it within 28 daysof receiving your claim.
What to look for: The ET3 will admit, deny, or provide an alternative explanation for the events you described. It will reveal the core of their legal defence.
5. Case Management and Hearings
5.1. Preliminary Hearings A judge may schedule a Preliminary Hearing (PH) to manage the case. This is not the final hearing.
Purpose: To clarify the legal issues, decide on time limit arguments, or set a timetable for the steps leading to the final hearing.
5.2. Orders and Directions Following the PH, the Tribunal will issue legally binding "Orders" or "Directions." These are tasks each side must complete by specific deadlines. Common orders include:
Disclosing all relevant documents.
Preparing a shared "bundle" of documents.
Submitting witness statements.
Agreeing on a list of issues for the final hearing.
6. Evidence and Disclosure
6.1. Disclosure You and your employer have a legal duty to disclose all documents relevant to the issues in the case, whether they help your case or not. This includes emails, meeting notes, grievance outcomes, contracts, and even private messages on platforms like WhatsApp if they are relevant to the dispute.
6.2. The Bundle This is the shared set of documents that both you and the employer will rely on at the final hearing. It should have a chronological index and page numbers for easy reference.
6.3. Witness Statements This is your main evidence. It is a detailed written account of what happened, in your own words.
Key Rules:
It must be written in the first person ("I saw," "He said to me").
It should align with the facts stated in your ET1 claim form.
It must reference the bundle to support your claims (e.g., "A copy of this email can be found at page 54 of the bundle").
7. Strategy, Settlement, and Compensation
7.1. Negotiating an Exit Settlement can be initiated by either side at any point in the dispute, often before a claim is even lodged. The aim is to agree on terms for a clean break. Consider involving a solicitor or your union representative to advise on the terms of any agreement.
7.2. Understanding Settlement Terminology Negotiations use specific legal terms. Understanding them is vital to protecting your position.
"Without Prejudice" (WP): This is a legal protection that creates a safe space for negotiation. When an email, letter, or conversation is marked "Without Prejudice," it cannot be shown to a tribunal judge as evidence of admissions or liability. This allows both sides to make settlement offers freely without weakening their formal case. For this protection to apply, there must be an existing dispute between the parties.
"Protected Conversation" (Section 111A of the Employment Rights Act 1996): This is a specific type of "off-the-record" conversation that an employer can initiate to discuss ending employment on agreed terms. Unlike WP, a "Protected Conversation" can take place before a formal dispute exists. However, this protection can be lost if there is any "improper behaviour" by the employer, such as placing undue pressure on you to accept an offer. This protection does not apply to discrimination, harassment, or whistleblowing claims.
COT3 Agreement: This is the legally binding settlement agreement arranged via ACAS. An ACAS conciliator facilitates the negotiation, and the final terms are recorded in a COT3 form. Once signed, you cannot pursue the same claims in the tribunal.
Settlement Agreement: If a settlement is reached privately without ACAS, the terms are recorded in a "Settlement Agreement." For this to be legally valid, you must receive independent legal advice from a qualified solicitor or union official. Your employer is required to pay for the cost of this advice.
7.3. Compensation ("Remedy") If you win your case at a final hearing, the tribunal can award compensation. This is often what settlement negotiations are based on.
Basic Award: A statutory award for unfair dismissal, calculated based on your age, weekly pay (capped), and length of service.
Compensatory Award: An award to compensate for the financial losses you have suffered because of the employer's actions (e.g., loss of past and future earnings, loss of pension).
Injury to Feelings (The "Vento Bands"): For discrimination and harassment claims, this is an award for the hurt, distress, and anxiety caused. The amount is set within three bands (lower, middle, and upper) depending on the seriousness of the case.
8. Costs and Risks
8.1. The General Rule In the UK Employment Tribunal, each party usually pays its own legal costs, regardless of who wins. This is different from civil courts.
8.2. Exceptions to the Rule The Tribunal can order one party to pay the other's costs if they have acted unreasonably. This includes bringing a claim with no reasonable prospect of success, being dishonest, or repeatedly failing to comply with tribunal orders.
Strategic Tip: Maintain a professional and cooperative attitude throughout the process, even when faced with difficult behaviour from the other side.
9. Key Legal Tests for Discrimination Claims
9.1. Direct Discrimination (Equality Act 2010, s.13) You must show that you were treated less favourably because of a protected characteristic (e.g., race, sex, disability).
The Comparator: You need to compare your treatment to that of a real or hypothetical "comparator"—someone in materially similar circumstances but without your protected characteristic.
Example: A white colleague who committed a similar minor misconduct was given a warning, while you, as a Black employee, were dismissed for the same misconduct.
9.2. Indirect Discrimination This is when an employer applies a universal rule or policy—a "provision, criterion or practice" (PCP)—that, on the surface, is neutral but in practice puts people with your protected characteristic at a particular disadvantage.
You must show:
The employer applied a PCP.
The PCP puts people who share your characteristic at a group disadvantage.
The PCP put you at that disadvantage.
The employer cannot show that the PCP was a proportionate means of achieving a legitimate aim.
Example: A requirement for all staff to work full-time might disproportionately disadvantage women, who are more likely to have primary childcare responsibilities.
9.3. Harassment (Equality Act 2010, s.26) Harassment is unwanted conduct related to a protected characteristic that has the purpose or effect of:
Violating your dignity, OR
Creating an intimidating, hostile, degrading, humiliating, or offensive environment for you.
Key Point: It can be a single serious incident or a pattern of behaviour. The employer's intent is not the main factor; the effect of the conduct on you is what is central.
9.4. Victimisation (Equality Act 2010, s.27) This is when you are treated badly (a "detriment") because you have done a "protected act."
Protected acts include:
Making a complaint or raising a grievance about discrimination.
Giving evidence or supporting someone else's discrimination claim.
Making a whistleblowing disclosure.
Example: You raised a grievance about sexist comments made in your team. A month later, you were denied a promotion that you were qualified for, with your manager labelling you as "not a team player."
10. The Reality: Emotional and Practical Support
The ET process is long and demanding. It is not just a legal battle; it is an emotional one.
Timescale: Be prepared for the process to take 6 to 18 months, or even longer.
Support System: It is vital to have support. This could be your GP, a therapist, your trade union representative, or trusted friends and family.
The Future: A tribunal claim often marks the end of your employment relationship with that employer. However, it is not the end of your career. Winning a claim or achieving a settlement means you successfully held your ground and asserted your rights.
11. Toolkit Resources
11.1. Templates
11.2. Checklists
A time limit calculator/tracker.
An evidence log.
A checklist for preparing for the final hearing.
A guide to negotiating a settlement.
11.3. Further Reading and Key Legislation
Equality Act 2010 (especially sections 13, 26, and 27).
Public Interest Disclosure Act 1998 (PIDA) (for whistleblowing).
Key Case Law: Hendricks v Metropolitan Police, Chondol v Liverpool City Council, Thompson v London Central Bus Company.
Final Thought:
You are asserting your legal rights, not asking for a favour. This toolkit is designed to help you proceed with confidence, structure, and clarity. The tribunal is where your voice can be heard.