THE BRANCH OFFICERS/REPS GUIDE TO PROCESSING EMPLOYMENT TRIBUNAL CLAIMS

This briefing is to guide Branches when assisting members who are considering taking unfair dismissal/discrimination complaints to an Employment Tribunal. It replaces our previous guidance in LTB 222/2018.

Members’ Entitlements

Members are entitled to the benefits and services of the Legal Services Department as governed by National Rule 4.1.7. “Members of the Union are entitled to receive appropriate benefits and as negotiated by the Union either nationally or locally and appropriate legal services at the discretion of the NEC in accordance with published procedures”. Members should be made aware that the Union is not obliged to support any case unless we consider that it has reasonable prospects of success, i.e. 50% or more. This criterion was agreed by the Union at National Conference.

Members have the right to take a complaint of unfair dismissal or unlawful discrimination and other disputes to a Tribunal provided they meet the qualifying legal conditions. It is mandatory for members who are considering making a claim to notify ACAS first by completing and submitting an Early Conciliation form. Members should always be made aware that an Employment Tribunal hearing is not a re-run of an employer’s internal discipline procedure and no matter how much an individual may feel an injustice has occurred, any application to the Employment Tribunal must be based on facts and not simply a desire to have a day in Court. The CWU has an obligation to assist its members. However, representation will only be authorised if a case has the required merit.

Branch Officials’ Responsibilities

As Branch Officials, you are responsible for processing requests for assistance from members of your Branch. Also, the Employment Tribunal can be accessed independently by members and their advisers. Our advice is that all Branches should have at least one Officer dedicated to these issues and a procedure to facilitate efficient and timely processing of all these ET claims to the Legal Services Department. We will be happy to discuss the practicalities of this advice with Branches, recognising the various internal structures and geographical spread.

Once an approach is made for assistance, Branches should note it is not their responsibility to provide representation to any member until the Employment Tribunal application has been assessed by the Legal Services Department. Branches should assist members with the application process and, once this is complete, all documentation should be forwarded to the Legal Services Department for assessment. This instruction is important, as we have had situations where Branches have become involved in representing members within the Tribunal process and have then got into difficulty, which has resulted in our members’ claims failing and claims being made against the CWU for negligence.

Branches should note it remains the responsibility of the member to submit his or her claim/s to ACAS for Early Conciliation and any subsequent application to the Employment Tribunal via form ET1. At no point should Branches go on record as the member’s representative to either of the above bodies.

Contained within the Appendix attached to this LTB is a Branch Consultation Record document which must be used by the Branch whenever assistance is provided to members. It must be completed, signed and sent to the Legal Services Department along with any request for assistance.

Time Limits

It is vitally important that members are made aware of the time limits for submitting a claim to the Employment Tribunals. For unfair dismissal claims, the 3 month time limit begins from the effective date of termination of employment. Members should not wait for any internal appeals procedure to be completed and should proceed with ACAS Early Conciliation within 3 months less 1 day of the effective date of termination of employment.

In discrimination cases, the time limit begins from the date of the “act” complained of. Again, the ACAS Early Conciliation process must begin within 3 months less 1 day of the date of the “act” complained of.

It is the responsibility of members to lodge Early Conciliation within the relevant time scales.

Starting the ACAS Early Conciliation (EC) process

Members will not be able to make an application to an Employment Tribunal without first making a claim via ACAS for Early Conciliation. This is a mandatory requirement. Once the Early Conciliation process is completed, ACAS will issue the member with an ACAS Certificate, which contains a unique reference number and must be quoted in the ET1 form, otherwise the Tribunal will reject the application.

Members should register with ACAS, as soon as they become aware of a dispute that may lead to an Employment Tribunal claim.

The time limits for submitting a claim to the Tribunal office still apply, but will be frozen once the application for EC has been received by ACAS. This is a protected period during which time the clock is stopped with regard to the 3 month period for submitting an ET1 claim form.

The ET time limit clock restarts once the conciliation process ceases and the appropriate ACAS certificate has been issued and received by the Claimant.

In cases where a Claimant is required to participate in EC, the ordinary limitation period for their claim(s) is extended to give the parties an opportunity to engage in the process. To achieve this, the limitation clock stops for a specific period, calculated as follows

Day A = Date the claimant submits the EC form
or provides this information to ACAS by telephone)              Clock stops the following day

Day B = Date the claimant receives EC Certificate
(or is deemed to receive it)                                                           Clock resumes the following day

Example 1 

Claimant X is dismissed on 10 March 2023
Ordinary limitation date: 9 June 2023
4 April Claimant completes EC Form online – Day A is 4 April. The clock stops from 5 April 20 April EC Certificate sent by email – Day B is 20 April
The clock stops from 5 April to 20 April amounting to 16 days (as all days are counted)
That period is added to the ordinary limitation date of 9 June.
Limitation expires on 25 June 2023.

Example 2

Claimant X is dismissed on 10 March 2023
Ordinary limitation date: 9 June 2023
4 April Claimant completes EC Form online – Day A is 4 April.
5 April EC Certificate sent by email – Day B is 5 April
The clock stops on 5 April amounting to 1 day. That period is added to the ordinary limitation date of 9 June. Limitation expires on 10 June 2023.

Example 3

Claimant X is dismissed on 10 March 2023
Ordinary limitation date: 9 June 2023
7 June Claimant completes EC Form online – Day A is 7 June.
1 July EC Certificate sent by email – Day B is 1 July
The clock stops from 8 June to 2 July (24 days). However, because ordinary limitation would have expired between Day A and within one month after Day B, limitation is extended by one month after Day B. Limitation therefore expires on 1 August 2023.

Individuals can complete the Early Conciliation notification form electronically by contacting Acas via their website (this is their preferred option) – http://www.acas.org.uk/earlyconciliation

By telephone via their national helpline number 0300 123 1100

By posting the form to EC Notifications, ACAS (Phoenix) PO Box 10279, Nottingham, NG2 9PE

Steps our members must take

• Contact ACAS as soon as possible irrespective of whether the member feels a settlement can be reached.

• Provide ACAS with their contact details along with the contact details of the employer and representative 

• Details of the claim not needed at this stage

• If the member requires CWU assistance, provide ACAS with the contact details of the Legal Services Department

• If a settlement cannot be reached, then ACAS will issue an EC certificate

• Members can now submit an Employment Tribunal claim form (ET1) whilst still pursuing a dispute.

Please refer to LTBs 143/2014 and 044/2015 for further information on ACAS EC. 

Some claims are exempt from the requirement to submit an Early Conciliation Form. However, if in doubt, ACAS should be contacted for advice, as quickly as possible.

Authorisation of Legal Representation

In order for representation to be considered, the Legal Services Department will require our member’s ACAS Early Conciliation certificate, a copy of the ET1 claim form, the employer’s response (ET3) and all relevant internal discipline/grievance and appeal notes and decisions in order that an initial assessment can be made as to the merits of the claim. All applications will be assessed by the Employment team at Unionline who will provide written legal advice as to the merits of our member’s claim. If the advice is positive then arrangements will be made via the Legal Services Department for representation to be provided either by one of the CWU’s in-house ET Panellists or by Unionline’s employment lawyers.

In the event the legal advice is negative, the Legal Services Department will either reject the claim outright or authorise one of the CWU’s in-house ET Panellists to review the claim and where appropriate make arrangements to interview the member along with the branch officials, in order to assess the claim from an industrial viewpoint. We have adopted this approach, as there are occasions where we feel our members have been treated unfairly by the employer and there may be circumstances whereby a non-legal view is able to shed new light on our member’s claim, which, linked with the legal advice, provides us with a stronger case. If appropriate, the ET Panellist can recommend support. The final decision on providing representation will rest with the Legal Services Department.

On all occasions, Branches should resist from advising members as to the likely outcome of such assessments, as this may lead to unrealistic expectations.

Making an Application

It remains the individual’s responsibility to submit the ET1 claim form to the Tribunal office and Branches may assist members with this process. Branches must not submit the form on the member’s behalf.

Members should submit their ET1 claim form direct to the Employment Tribunal Office. Once they have received an acknowledgement that the claim has been lodged, they should send a copy of the claim form to the Legal Services Department.

Branches should note and explain to members that once the ET application has been lodged with the appropriate Tribunal office, the normal process for assessment will be made by the Legal Services Department as to the merits of the claim. A decision on representation will be made once the application has been assessed.

Online applications can be made via the website at https://www.gov.uk/government/publications/make-a-claim-to-an-employment-tribunal-form-et1

If a member is making a claim by post in England and Wales, the ET1 form can be sent to the Employment Tribunals Central Office, Post Office Box 10218, Leicester, LE1 8EG. 

If the member is making a claim in Scotland, the form should be sent to: Employment Tribunals Central Office, PO Box 27105, Glasgow, G2 9JR.

Employment Tribunal Process

Once the Tribunal office has accepted the application the member will receive correspondence direct from the Tribunal and copies should be sent to the Legal Services Department. This usually happens prior to a decision being made regarding representation, and in such circumstances, the members must comply with the Tribunal orders. If the CWU is providing representation then the Union’s Solicitors or ET Panellist will notify the Tribunal Office and go on record at which point the Tribunal office will correspond direct with the Solicitors or ET Panellist.

In circumstances where a decision on representation has not yet been made, the Tribunal will still carry on with its procedures and it is at this point that Branches may need to assist the member with any Orders (instructions) given by the Tribunal office.

The following is a guide to those procedures.

If a claim is accepted by the Tribunal office, they will send a copy of the member’s ET1 claim form to the Respondent (the named employer or persons who the claim is against).

The Respondent must set out the grounds of resistance in the prescribed form, ET3, usually within 28 days, and send it back to the Tribunal office.

As soon as possible after the ET1 and ET3 have been accepted by the Tribunal, an Employment Judge will carry out an initial consideration of the documents to confirm whether there are arguable complaints and defences that can be considered by the Tribunal.

The Employment Judge may seek further information from the parties before reaching a decision. The Tribunal Judge may set a date for a Preliminary Hearing.

There are two types of Preliminary Hearings, known as,

1. Case Management Discussions (CMD), and

2. Pre Hearing Reviews (mini hearing) (PHR).

Branches should note that the Legal Services Department would not expect Branch Officials to attend PHRs, as decisions can be made on the day regarding the merits of the case. If a PHR is listed the Legal Services Department will make every effort to ensure the member has suitable advice. 

If, however, a CMD is listed, Branches should be able to assist our member.

A CMD is usually called to explore the issues of a case and set a timeline for the progression and administration of the claim by the Tribunal. The CMD can be arranged as a face to face meeting with the Judge, which is held in private, or, as in many cases, as a telephone conference.

A key part of the CMD is the need to complete a form known as Agenda For Case Management At Preliminary Hearing, which will be sent by the Tribunal office.

The form has to be completed by the Claimant and the Respondent. This form can be an agreed form with the Respondent (this is usually not possible), or, as two separate forms, which should be sent to the Tribunal Office and the Respondent/s no later than 2 days before the Preliminary Hearing.

It is essentially a time-tabling exercise, which enables the Tribunal to set dates by which pieces of work need to be completed in advance of the claim going to a full Tribunal Hearing.

Completing the form is an important part of the process, because it will prepare the member for the hearing, and the questions asked enable both parties to concentrate on the relevant issues, which include the correct name of the parties, the complaint, documents relied on, witnesses to be called, dates to avoid and the remedy (this will require the completion of a separate form known as the Claimant’s Schedule of Loss). Copies of both forms are attached at the appendix.

There are a number of specific case management powers the Employment Judge has, which include,

Power to order disclosure of documents and information

Power to order production of witness statements

Power to compel the attendance of a person at a hearing ( witness order) Power to add, substitute or remove a party from the proceeding

Power to strike out all or part of a claim or response

Power to make an unless order (can strike out the claim if either party fail to respond)

Power to make a deposit order (This is a monetary payment that a party has to pay if he/she pursues a weak claim)

Power to deal with nonpayment of a deposit order.

CLAIMANT’S SCHEDULE OF LOSS

This document is the one which causes our members the most concern, as it details the amount of compensation they wish to claim, as part of any settlement.

Most of the details required should already be available to our members, such as their basic pay, length of service, notice period, loss of earnings, etc.

The awards fall into 2 categories, as follows :-

Basic Award

Compensatory Award

These awards are calculated, applying a detailed formula, as detailed below. Some areas are more difficult to quantify, such as future pension loss. It is important to understand that the information supplied in the schedule of loss is only an estimate of what our members feel they are entitled to claim and, if they are unsure what amount to put down or if the figure is inaccurate, it does not matter, as details can be added later. In any case, it will be the Employment Judge who decides the level of compensation to award.

Basic Award

This is calculated in the same way as a statutory redundancy payment as follows:-

• 1½ weeks’ pay for each year of employment in which the member was not below the age of 41;

• 1 week’s pay for each year of employment in which the member not below the age of 22; and

• ½ a week’s pay for each year of employment not within either of the above

The following should be noted:

• For dismissals after 6^th April 2023, a week’s pay is currently capped at £643 per week (gross); The maximum basic award is for a period of 20 years – the maximum award therefore being 20 x 1.5 x £643 = £19,290. Usually, the weekly cap is changed each year, so the member must check the weekly rate that was in place at the date of dismissal.

Compensatory Award

This award compensates for loss of earnings flowing from the unfair dismissal.

Bonus and commission payments will be included in any sum for loss of earnings, as well as basic salary.

The award is essentially based on the net loss of earnings and employment benefits until the member has found, or can reasonably be expected to find, alternative employment at a similar rate as previously.

Benefits include (but are not limited to)

• pension losses;
• loss of a company car;
• loss of health insurance and life assurance;
• bonuses

The loss of other contractual benefits may also be taken into consideration. There is a cap on the compensatory award for unfair dismissal claims, which currently stands at £105,707 or one year’s salary, if that is lower. This cap is usually increased at the beginning of April, so the member must check the figure in place at the time of dismissal.

Pre Hearing Review (PHR)

Preliminary Hearings are mini hearings, which may be held in public and either at the Employment Judge’s request or an application of one of the parties involved, to determine any preliminary issue, for example:

1. Decide whether to strike out the whole or part of the claim or response
2. Any substantive issue which may determine liability
3. An issue as to jurisdiction (has the claim been submitted within the agreed time limits)
4. Whether the employee was dismissed or not
5. Whether the claimant was an employee; or
6. Whether the claimant was disabled

A Tribunal must give 14 days’ notice if a Hearing is to determine a Preliminary issue and in all other cases, the tribunal must give reasonable notice.

Once the Preliminary Hearing has been concluded, the Tribunal will issue Case Management Orders, which will be sent direct to the member (the Claimant), or, a decision, depending on what the Hearing was called to determine. These Orders will detail what action need to be taken by the Claimant and/or the Respondent and the time scales for doing so. These Orders include requests for Further and Better Particulars of the Claimant’s claim, requests for Further and Better Particulars of the Respondent’s claim, the date upon which witness statements need to be exchanged between the Claimant and the Respondent, the date for disclosure of any relevant documentation, which can include medical notes and reports which are to be relied upon, the date and time for the preparation of the Tribunal bundle and a date and duration of the Tribunal Hearing.

Branches should be aware that there are consequences for the non-compliance of such orders, which will include a fine being imposed upon the person being in default. Non-compliance could lead to the claim being struck out.

In any event, if you are unsure about any issue contained within this guide, please contact the Legal Services Department, who will provide the necessary assistance.

Details contained within this LTB are for information purposes only and members should be made aware that it is not given as qualified legal advice. Such legal advice can only be provided by a solicitor.

If you have any further enquiries regarding the above then please contact Mr. Tony Rupa, Head of Legal Services, Communication Workers Union, 150 The Broadway, London, SW19 1RX. Telephone 0208 971 7444 or via email trupa@cwu.org

Yours sincerely

Tony Rupa

HEAD OF LEGAL SERVICES

Useful sources of information : www.justice.gov.uk/tribunals/employment | www.acas.org.uk | www.equalityhumanrights.com

Attachments :

LTB 275 2023 – THE BRANCH OFFICERS & REPS GUIDE TO PROCESSING EMPLOYMENT TRIBUNAL CLAIMS

LTB 275/23 – Attachment to Guide to Processing ET Claims

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