Employment Tribunal Guidance – Key Considerations Before Making A Claim

Employment Tribunal GuidanceWe have set out Employment Tribunal Guidance, which addresses some key considerations before making a claim. It is important to review these points and understand how they may apply to your situation. Presenting an Employment Tribunal Claim is a big decision, which is why taking professional advice first is recommended.

  1. Do you have legal expenses cover?

    1. A key point when requesting Employment Tribunal Guidance is to understand if you have insurance for legal fees.
    2. It is mostly found under your home insurance – lots of people have legal expenses cover and don’t realise.
    3. If you don’t have it, think about adding it to your policy for future issues. It is relatively inexpensive and often comes with £50,000 worth of cover.
  2. Length of Service.

    1. Do you have the requisite length of service?
    2. For example, if you are looking to bring a claim of unfair dismissal or constructive dismissal, you need at least two years of continuous service.
      1. There are exceptions to this, for example, if you allege that your dismissal was discriminatory or because of whistleblowing. You will need to discuss this with an employment lawyer.
  3. Early Acas Conciliation.

    1. Before you can make a claim (again there are some exceptions) you must go through Early Acas Conciliation first.
    2. This influences time limits (see below) which can be a bit tricky.
  4. Is your claim in time?

    1. In general, you do not have a lot of time to bring a claim in the employment tribunal.
    2. The time limit is often 3 months less 1 day. For example, if your employment ended on the 15th of January 2020, the deadline to start Early Acas Conciliation would be the 14th of April 2020.
    3. As said, you must start Early Acas Conciliation (subject to a few exceptions) before a claim can be made and this must be done during the relevant time limit.
    4. After Early Acas Conciliation has ended, there will also be a time limit in which to bring your claim. The rules vary here.
    5. If you have multiple claims this can become complicated as can the effect Early Acas Conciliation has on the time limit to bring a claim.
    6. The deadline to make an application for interim relief is just 7 days (there is no requirement to commence Early Acas Conciliation).
    7. If you want to present claims against more than one Respondent, you must commence Early Acas Conciliation against each (including individuals that still work for a Respondent).
  5. Are there decent prospects of making a recovery?

    1. We are not referring to your prospects of winning the claim (see below), but if you win your case can the Respondent afford to satisfy your judgment?
    2. For example, if the relevant company is in financial difficulty or even about to go into administration, you must decide if it’s worth the risk of bringing a claim and not receiving any compensation.
  6. Do you have reasonable prospects of winning?

    1. We appreciate this may be difficult to determine but needs to be considered early on.
    2. Do you even have a legal basis for a case? The Tribunal is not there to decide if there has been unfair treatment, it is there to decide if treatment is unlawful. This is a key difference – there is lots of unfair treatment that even if proven, won’t amount to a victory for the Claimant.
    3. Can you prove and win your case? Even if there was unlawful treatment, your employer may deny it happened and you will need to prove that it did.
    4. This needs to be read in line with 2 and 4 above, which may have a huge impact on your prospects of winning.
  7. Do you have the time/resources to bring a case?

    1. This is much more difficult if you don’t have legal expenses cover.
    2. If you don’t have insurance, can you afford legal representation?
    3. If you are going alone, do you have the time and skills to present a coherent case? Brining and putting together a good case takes a lot of time. It is also no easy task, because you will be going through a process you are unlikely to understand.
    4. Point c above is particularly difficult if your employer is represented and you are not.

Employment Tribunal Guidance – KEY POINTS / CONCLUSION

  • It is not our aim to put people off bringing a claim or at least considering doing so, but the above points should be considered, and done so quickly. We frequently speak to people that want to take further action (and some that already have) to discover their claims are out of time or they don’t qualify to make them.
  • Our message is to think carefully and to make sure you give yourself the best chance of succeeding if you take the plunge.
  • This will of course depend on your personal situation. It may come as no surprise that our view is that your prospects of success will be greatly improved if you are represented by a good employment lawyer. Our focus is on helping parties be successful in the pursuit of claims.
  • If you cannot afford full representation, think about getting whatever assistance you can. Whether that be free help, for example, law centres, CAB FRU, or some assistance from an employment lawyer to keep you on track. This can either make all the difference or you may discover that for whatever reason you are unlikely to succeed, and you can save a lot of time and anguish. For example, if you pay for a professional opinion on claims you wish to bring, where being told the claims lack merit will be disappointing, this is far better than pursuing a claim for several years for it to fail before a Judge at the Tribunal.

Employment Tribunal Guidance – Next Steps

If you are considering making an Employment Tribunal claim, the natural first step is to take professional advice.  It is important to understand the strength and potential value of claims at the outset and how the claim is originally presented to the Employment Tribunal is important.


The above is for information purposes only. Nothing should be relied upon as a substitute for legal advice and nothing written should be construed as legal advice or perceived as creating a lawyer-client relationship.

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