What can you expect if you take a claim to a tribunal? iVillage work rights expert Rachel Lewis explains the process and answers common question for those considering legal action

You’ve been sacked. Everyone says that your employer shouldn’t be allowed to get away with it – but how do you go about starting a claim against your employer? What does it entail and what are you letting yourself in for?

Bringing a claim: look before you leap

The first thing to bear in mind is that there’s no need to make immediate decisions. In dealing with clients I’ve found that their emotions can change massively. After a dismissal, the first rush of bewilderment and anger often gives way to a more pragmatic view further down the line. Don’t commit yourself to legal action too quickly – weigh up all the options before you act. If you get another job straight away, it may make no financial sense to bring a claim. And psychologically, the closure achieved by moving on may be more beneficial to you. Make sure you’ve thought about the implications and discussed them with your friends and family. It’s not just you who will be affected by the decision to take things further.

The bottom line is that you have three months from the date you’re dismissed within which to bring a claim. Use that time to think over your options and whether you really want to take your employer to court. Many clients say that there is a point of principle involved and they want to ‘expose’ the treatment they’ve suffered – and I really understand that. But points of principle can be expensive, so make sure you’re really committed to taking the case forward and that you’ve had expert advice on the pros and cons of doing so.

Next page: entering the unknown

Decided to go on? How to lodge your claim

The vast majority of employment related claims are heard by an employment tribunal. These were set up to dispense ‘common sense’ justice. Originally the aim was to be less formal than the high court, avoiding all that LA law-style posturing. But in practice, employment law has become much more complicated since tribunals were first envisaged, and while they are usually keen to assist applicants (especially if they are unrepresented) it can still be a daunting and confusing process.

In order to bring a claim you must submit an application called an IT1 to the appropriate tribunal – contact your local Citizens’ Advice Bureau (CAB). The CAB can give you the form, or you can get it from the tribunal or the Advisory, Conciliation and Arbitration Service (ACAS). It isn’t a complicated or legalistic form and you can either fill it out yourself, setting out briefly what your complaint is about, or, get a lawyer or representative to do it for you. As long as you lodge your claim in time, the content isn’t so critical – you can make amendments later. Remember, however, that you cannot change the basic cause of action.

On receipt of an application the tribunal will send a copy to your employer or ex-employer (known as the respondent). The respondent then has 21 days in which to reply. The reply (called an IT3) must set out the basis on which your employer intends to resist your claim. Bear in mind that receiving the IT3 back from the tribunal can be something of a shock. Your employer may start raising lots of issues you think are irrelevant or which are even hurtful. This may be the first step in what can seem like a sustained campaign to discredit you. Try not to be daunted and stick to your guns, however distressing it may be.

Next page: creating a case

What next?

What follows can often seem like a huge black hole, as there will almost inevitably be a delay before your case is listed for hearing.

You’ll probably hear fairly swiftly from ACAS – the independent conciliation service – who will appoint an officer to handle your case. It is possible to negotiate a settlement via ACAS at any time before the hearing date. ACAS are also running a new scheme, which hopes in time to determine unfair dismissal cases in a more informal arbitration hearing, rather than proceeding to a full tribunal. If you do manage to agree a settlement, the ACAS officer will draw up a written agreement (COT3). Once signed, this will be binding on both parties. It records all the aspects of the settlement, including issues like confidentiality, liability and, sometimes, even an agreed written reference.

Directions hearing

Quite frequently, the tribunal will order a directions hearing. Think of this as an administrative procedure that will give you an advance taste of the final hearing. It’s not a full hearing and will typically last only 30-40 minutes. At this hearing the chairman will set out the timetable that he or she would like the parties to follow in the lead up to the full hearing. This will cover issues like the hearing date, which is likely to be about six months from issuing the claim (make sure you know which dates don’t work for you); any order for additional detail to be provided in either the IT1 or IT3 (“further and better particulars”); and dates for exchange of witness statements and hearing bundles (relevant documentation). It’s important to comply as far as possible with any such directions – nothing annoys tribunals more than an under-prepared case. During the directions hearing the chairman will also decide how long he or she thinks the full hearing will last. Most cases take only one day, but more complex cases can take longer.

Next page: the tribunal

The tribunal hearing

Format

The hearing will be conducted on an informal basis and neither the chairman nor any barristers present wear a wig or gown. The tribunal panel sit at a raised table. The panel consists of a legally trained chairman and two wing members (one will have worked in industry and the other will have trade union experience). The chairman should be addressed as either Sir or Madam. The respondent’s representatives will sit at a table on the left and you and/or your representative will sit at a table on the right. There will also be a separate smaller table from which any witnesses will give their evidence.

The party called upon to go first (generally the respondent) will make a short opening statement and call their witness(es) to give evidence. The witness(es) will then go through their statements with the representative. It’s critical that you have prepared a full witness statement for each person giving evidence on your behalf – and agreed it with them in advance. Otherwise, the evidence they give may wander fairly far from the mark under the pressure of the tribunal surroundings. The other party’s representative (if they have one) will then question the witness in order to check whether their evidence rings true – this can be the scary part of the proceedings. This process is then reversed with the other side’s witnesses. The panel will ask questions of witnesses throughout the hearing. Closing speeches will then normally be made.

The tribunal will retire to consider its decision. You may be informed of its verdict there and then but it generally ‘reserves’ its decision – sending it out by post a few weeks later.

Sounds simple

Yes, in theory. But it’s wrong to underestimate the stress of preparing for and attending a tribunal hearing. What can you do to make things as hassle-free as possible? Here are some ideas:

Next page: the juice

• Tribunals will normally bend over backwards to help an applicant who is not legally represented. However, they cannot argue your case for you. Many people find it sensible to seek legal advice where possible – either handing over their whole case to a lawyer, or running it themselves but taking periodic advice on tactics. Failing this, you could visit your local Citizens Advice Bureau before the hearing (and, where possible, before issuing your IT1). If you do see a solicitor, be as full and frank as possible about your case. Sounds obvious, but it’s amazing how many people hold back, whether through fear or embarrassment. This can be fatal. You may not think a particular piece of information is relevant but it could turn out to be critical at the hearing. It’s important to feel comfortable with your solicitor – if you feel you’re being fobbed off or patronised, that’s a pretty good sign that you need a new lawyer.
  
  
• The hearing will be stressful, which is worth bearing in mind if the other side does make a settlement offer. You may think you will be fine, but it’s impossible to underestimate the effect of actually arriving at a tribunal. If the claim does proceed to a full hearing and you’re not being represented, you should consider asking a friend to accompany you for moral support and encouragement. Also consider going and sitting in on a case some time before your own claim is due to be heard. Tribunals are public places and you have every right to sit at the back of another hearing and assess how the whole system works.

Next page: what about you?

• The biggest worry for most employees bringing claims in the employment tribunal is the prospect of being cross-examined. When you come to give evidence, the other side’s barrister and the panel will almost certainly give you a grilling. You should be prepared for this and it goes without saying that it will not be particularly pleasant. (I’ve seen chief executives reduced to stuttering wrecks in the witness box). However, if you take your time, keep calm, do not lose your temper, and be as honest as possible, you will be fine. If you do not know or can’t remember the answer to a question you should simply say you don’t know. This is much better than making an answer up (which is always tempting) – a barrister will soon spot and capitalise upon any weaknesses in your evidence. It is also easy to take the barrister’s line of questioning personally and convince yourself that the panel is against you. Try to remember that the barrister is simply doing his/her job and does not in fact think you are the lying/dishonest layabout that they might be trying to portray. In addition, you should not read too much into the panel’s behaviour as they will often rule in favour of a party to whom they have seemingly given a hard time.

Compensation

If the panel gives its decision on the day and rules in your favour, you should be ready to discuss your possible remedies. More information about the kinds of compensation you can expect can be found at iVillage Work Rights. If the tribunal reserves its decision these issues will be discussed at a separate remedies hearing, unless the parties are able to agree a suitable solution (in light of the decision) via ACAS.

Next page: What does it cost?

Costs

Costs vary a great deal: they depend on the nature of your case and the firm you use. Therefore it’s extremely difficult to speculate on the amount of money involved. It could cost anything between £2,000 and £10,000 to bring a straightforward unfair dismissal claim. However, you should expect to be responsible for your own legal costs whatever the outcome. This is obviously a key thing to bear in mind when deciding whether or not to instruct a solicitor. If you do, make sure you understand the basis on which you’ll be charged, and if possible, try to arrange a fixed fee. An increasing number of law firms are prepared to represent applicants on a no win, no fee basis.

Stand up for your rights

Any applicant who has taken their case to a full employment tribunal hearing will tell you that it involved a lot of preparation, hard work, expense and raw emotion. You should therefore consider any settlement offer extremely carefully. However, having said this, you should also be ready to grit your teeth and battle on if this is what it takes to protect your employment rights.