• Robert Spicer

Employment Tribunal: legal aspects and initial questions

If you think that you have been badly treated at work, for example by being dismissed, made redundant or subject to discrimination, the first step is to find out if you have a legal remedy. If you belong to a trade union, this should be the first port of call for legal advice.

Important note: if you have been employed for less than two years, your protection rights are minimal. It is not unknown for workers to be dismissed by cynical employers shortly before the end of the two-year period. If employers dismiss workers before the two-year continuous employment requirement, there is little that can be done, except:

A possible claim for breach of contract, for example where the employer has failed to comply with the terms of a probationary period.

Automatically unfair dismissal. There is no two-year requirement in such cases.

Automatically unfair dismissal covers a wide range of statutory rights and includes, in summary:

  • pregnancy and maternity dismissals

  • some domestic and family entitlements

  • flexible working

  • part-time working

  • fixed-term workers

  • agency workers

  • assertion of a statutory right

  • health and safety

  • some trade union issues.

Discrimination: The Equality Act 2010 protects employees with protected characteristics against discrimination regardless of their length of service.

INITIAL QUESTIONS RAISED BY CLAIMANTS

In my experience, the most common questions asked by claimants include the following:

  • Do I have a legal remedy?

  • What are my chances of success?

  • How much will I get if I win?

  • How much will legal representation cost?

  • Can I get my job back?

  • Can I get legal aid?

  • Can costs be awarded against me?

  • Can we work on a no win/no fee basis?

  • Will I have to repay social security benefits?

  • Will I have to pay income tax on my compensation if I win?

  • Is the ET the same as a court?

  • What are the chances of the claim being settled?

  • What can I do if I win and the employer refuses to pay?

Perhaps the best way to start off an employment-related claim is to consider options and an ideal solution. For example:

Option1: do nothing and forget about it.

Option 2: start legal proceedings. This involves the first step of identifying possible causes of action.

Ideal solution: this is normally to recover financial compensation from a wrongdoing employer.

Claimants often state that they are not interested in the money, but want justice, or an admission of liability and an apology, or their day in court. These expectations don’t normally reflect the reality of ET cases, where the great majority of successful claims result in financial compensation.

If this solution is achievable, it should form the basis for the tactics and overall strategy of all future actions.

Questions before deciding course of action include:

  • Has there been a dismissal?

  • If so, when was it?

  • Was a formal grievance lodged?

  • If no dismissal, has a resignation been caused by a fundamental breach of contract?

  • Was there a last straw which forced resignation?

  • Is there any evidence of discrimination, for example sex, race or disability?

  • Has there been a sham redundancy?

  • Is there any medical evidence related to, for example, work-related stress?

  • Has the claimant found new work?

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