(May 23, 2010)
Stage 1 – Are you still within time limits?
If you want to make a claim to the Employment Tribunal, you should bear in mind that there are time limitations. As a a general rule, the cut off time will be three months (minus one day) from the date of your last day at work or date of dismissal. So for example, if your last day at work was 17 April 2009, then the cut off date for you to submit an application to the Employment Tribunal was 16 July 2009. If you are submitting your application form electronically then you will have until 12 midnight in which to submit your form, but not a minute more, so its best not to wait until its too late.
The application form is referred to as the ‘ET1‘ and is downloadable from the website of the Employment Tribunal. At the moment there are two different ET1 application forms available from the Employment Tribunal. The first form is for those claims using the old rules, and the second form is for those claims caught under the new rules. The reference to new rules covers changes that took effect from 6 April 2009. In general terms, your claim will be under the old rules if the ‘incident’ occurred before 6 April 2009, and under the new rules if the ‘incident’ occured on or after 6 April 2009. For a more detailed explanation on how this works, refer to the BIS website.
How do you calculate what was your last day at work. If you resigned then you will already know what was your last day at work. However, if you were dismissed, then your last day at work will usually be specified in writing by your former employer. If you did not receive anything in writing then it will be the date that you were verbally told you were dismissed.
The main effect of the difference between what you can claim for under the old rules and the new rules will be a matter of procedure. Under the old rules an employee was ‘automatically’ unfairly dismissed if the Employer failed to follow the Statutory Disciplinary and Dismissal Procedures (‘SDDP’). The compensation for this alone is usually four weeks gross pay. As a remedy the dismissed employee can claim wrongful damages. Another point to note is that the Tribunal is directed to increase the compensation by a minimum of 10%. Under the new rules however, Employers are not required to follow the SDDP. Instead they should (but not must) abide by the guidance from ACAS. If an Employer has failed to follow the Guidance and codes of practice from ACAS then this will be taken into consideration at the Remedy stage if appropriate.
Stage 3 – What can you claim for?
The application forms are here for the old ET1 and the new ET1. As you go through the form you will notice that you will have a number of different options to choose from. Depending on your individual circumstances, you could claim for:
- unfair dismissal (including constructive dismissal);
- discrimination on the grounds of: sex; disability; sexual orientation; race; religion or belief; age;
- payments for: redundancy; notice; holiday; arrears; or other payments
- other complaints
If you did not receive an employment contract of written statement of particulars within two months of starting employment, then you can claim for breach of your rights and seek compensation accordingly.
Stage Four – Should I represent myself?
Who you will turn to for assistance will mostly depend on your means. To take a claim to the Employment Tribunal, you could submit the form yourself, manage the claims process yourself, and represent yourself at the hearing. It is very important to note that you must outline all your legal arguments in your ET1 that you will rely on during your hearing, because at the hearing you will not be able to bring up any new legal arguments.
Alternatively, you could ask someone else, like a Barrister or Solicitor to submit the ET1 form for you, manage the claims process and represent you at the hearing. ACAS will no doubt be involved as they will attempt to mediate and negotiate a settlement first to prevent the claim going to a hearing. When considering a settlement it is important to bear in mind that the money you receive from a settlement will go to you in full, and payment is usually much faster and within two to three weeks. However any award you may receive from the Tribunal will be subject to recoupment for all income support payments and job seekers allowance you may have received between the date of your dismissal and the date of your hearing. You should also note that you will be required to produce evidence of mitigation of loss at the Remedy hearing when the Judge calculates how much to award you. You will need to prove that you have been ‘actively’ looking for work. Therefore you should keep a record of all the jobs you applied for and were rejected from, keep copies of email correspondence, application forms, letters to interview, letters or rejection and so on. If you have already started a new job then you will need to show proof of the date you started your new job, the letter of offer, first wage slip, contract of employment and so on.
Stage Five – Who can you turn to for help?
If you are a trade union member then you would contact your Trade Union for advice and representation. You can get free general advice from the Citizens Advice Bureau, or the Community Law Centre. You can also contact ACAS for specific advice.
Useful contact numbers are:
- Advisory, Conciliation and Arbitration Service (ACAS) – 08457 474747
- Community Legal Service – 0845 345 4345
- Discrimination on the grounds of disability – 08457 622 633;
- Discrimination on the grounds of race, age, gender, sexual orientation, religion and belief – 0845 604 6610
- Redundancy Payments – 0845 145 0004
- National Minimum Wage – 0845 600 0678