The employment tribunal system 





The Employment Tribunal Service is part of the Ministry of Justice HM Courts and Tribunals Service (HMCTS). Most employment claims are heard by employment tribunals but some cases must be brought in the ordinary civil courts (the small claims court, the county court, or the High Court). 





The main kinds of claim that workers must take to the civil courts rather than the employment tribunal are:




• all breach of contract claims where the employment contract is ongoing;





• applications for injunctions to enforce legal rights; and





• claims for compensation for personal injury (unless the claim is for personal (usually psychiatric) injury caused by a breach of the Equality Act 2010 — see Chapter 7). 





Employment tribunals (industrial tribunals in Northern Ireland) were originally set up under the Industrial Training Act 1964 as an informal, accessible, quick and inexpensive way of resolving employment disputes, and a means of reducing strikes. They represented a deliberate policy shift away from resolving workplace disputes through collective industrial action towards an approach based on individual legal rights. 





An employment tribunal’s jurisdiction is based on statute. Without a legal statute giving the tribunal the power to deal with a particular issue, the tribunal is not allowed to consider it. 


An employment tribunal can hear some claims by employees for breach of the employment contract, but only if the breach arises or is outstanding on dismissal (see Chapter 3). Unlike the civil courts, where there is no cap, compensation for a successful contract claim in the employment tribunal is capped at a maximum of £25,000. 


There is a general legal principle that if you bring a claim in one court, you cannot then take the same claim to another.





Employment tribunals are for claims by workers against their employer, not for claims by employers against workers. Employers must bring all their claims in the civil courts. The only time an employer can claim in the employment tribunal against an individual employee is where he or she has already issued a tribunal claim for breach of the employment contract. In these circumstances, the employer may be able to “counter-claim” against the employee for damages for breach of the same contract. Legal advice should be taken before issuing any tribunal claim. 







In general terms, employment tribunals hear a wide range of claims, including claims for unfair dismissal, unlawful deduction from wages, redundancy pay, discrimination, equal pay, claims relating to parental rights, working time claims, claims based on unlawful blacklisting and trade union rights. 





In May 2014, it became mandatory for prospective employment tribunal claimants to initiate Acas Early Conciliation (EC) as a first step in all tribunal claims (except claims for interim relief — see page 166). This is done by submitting an Acas EC Notification Form. The purpose of Acas EC is to find out whether the parties want to try to resolve their dispute through Acas at an early stage without the need for a tribunal claim. 




The Acas EC procedure also operates as a mandatory gateway to the tribunal system. Without an Acas EC Certificate Number, the claim must be dismissed. Chapter 14 contains information on accessing Acas EC and making a tribunal claim. There is detailed information on the Acas website.




Without doubt the most important employment law change of recent years has been the abolition of tribunal fees in July 2017 as a result of a landmark judicial review challenge by public services union UNISON in the Supreme Court. Fees were abolished with immediate effect. In a strongly worded judgment, the Supreme Court ruled that fees impeded the common law and constitutional right to access justice, without which “laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory and the election of Members of Parliament may become a meaningless charade”. The judgment explained how everyone in society benefits when an individual enforces their rights. The possibility of a legal claim checks the behaviour of employers who might otherwise be tempted to break the law (R on the application of UNISON v The Lord Chancellor [2017] UKSC 51). 



Fees were first introduced in July 2013. Until then, accessing the employment tribunal had been free of charge. The fee regime required claimants (not employers) to pay substantial fees to issue a tribunal claim, for example, a fee of £1,200 to enforce the right not to suffer pregnancy discrimination at work, with extra fees for any appeals. A remission process, supposed to eliminate fees for anyone unable to pay, was extremely ungenerous. Even if a claimant and her partner were both on the National Minimum Wage (NMW), she would still not have qualified for full fee remission. 



Unsurprisingly, the abolition of fees produced a sharp and sustained increase in the number of tribunal claims, reflecting the large number of workers whose claims were shut out while the fee regime was in place. As of September 2018, there was a year-on-year increase in the number of single claims of 165%. 


In November 2018, officials at the Ministry of Justice spoke of plans to reintroduce “proportionate” and “progressive” fees, with a “rebate” scheme for anyone unable to pay.