1) Your employer will send a response to your claim.
They should do this within 28 days. You will receive an email when they have responded. If they don’t respond on time, the Tribunal may decide the case in your favour without a hearing.
Read their response and make notes of what you disagree with on a separate document. Their response may include things that you don’t agree with or don’t think are fair – but don’t get in touch with them to tell them what you disagree with at this stage. Keep that for settlement negotiations (for example, through conciliation or mediation), or the hearing.
This is part a series of guides
We have written them because we understand how being treated unfairly at work can impact your whole life, even how you see yourself. We want to support you to work out if you can or should take your case to the employment tribunal, and to help you to do it well - even if you cannot find an adviser to help you, and cannot afford to pay for help. We suggest you read all of the guides in the employment tribunal series.
2) Your employer may offer conciliation again, or some employers might suggest private mediation which they pay for (particularly for a complex case like discrimination or whistleblowing).
Now that you have started your case, your employer might be more focussed on avoiding the cost of a lawyer to defend your claim and any potential bad publicity. This is worth exploring – see our advice on how to negotiate a settlement with your employer.
3) Directions
The tribunal will set out in writing what you each need to do to get ready for the hearing and give you a timetable that you must stick to.
In simpler cases (for example, about underpaid wages) the Tribunal will tell you these in writing – called a case a management order. This will include when you need to share your evidence with the other side (lawyers call this ‘disclosure’), or have sent the employer your witness statements by. See Evidence for the employment tribunal. If you have not already provided a valuation of your case/schedule of loss, it will tell you to do that now. See our guidance on how to create a schedule of loss for an employment tribunal.
In more complex cases (like discrimination or whistleblowing claims), you may have to have a preliminary hearing with an employment judge, usually by phone or video. Preliminary hearings are open to the public.
Preliminary hearings are used to decide if the case can go ahead because youmet the legal requirements for that kind of case. For example, if you are/were really an employee or a worker. Or if the claim was really brought in time.
If your case is about disability discrimination, and your employer has argued that your difficulties do not amount to a disability, there may have to be a preliminary hearing to decide whether you are disabled. This is because, if your impairment or difficulty doesn’t amount to a disability in the law, or didn’t at the time, you are not protected (you may have been treated unfairly but it wouldn’t count as disability discrimination). See the box below for more details about what happens.
If you have a preliminary hearing, see Citizens Advice’s guidance about what will happen.
If your case is about disability Under the Equality Act 2010, someone is considered to be disabled if they have a physical or mental impairment that has a substantial and long-term unhelpful effect on their ability to carry out normal day-to-day activities. “Substantial” means more than a minor impact, and “long-term” means that the impairment is likely to affect them for at least 12 months, or has already done so. “Normal day-to-day activities” include the things you do on a daily or regular basis in your home and social life and can include things that enable you to participate fully in your working life. Some conditions or impairments are automatically classed as a disability, such as cancer, HIV, multiple sclerosis and blindness. There are also progressive conditions, such as Alzheimer’s and motor neurone disease, that are treated as a disability as soon as they start to affect your normal day-to-day activities, as long as the effect is expected to be substantial in the future. Mental health conditions and new conditions are more likely to be challenged by an employer as ‘not being a disability’. If your employer argues that you are not disabled (or were not disabled when the events took place) you will often need to get expert medical evidence that shows you are. The Tribunal will give both sides a timetable of steps to take before the preliminary hearing to get the evidence needed. Sometimes, it will be sufficient for you to explain to the tribunal your GP records and pre-existing reports written by the medical specialists already treating you. However, you might be told to get an expert witness to prepare a report. If this happens to you, both you and your employer jointly choose an expert, and give them a list of questions to answer that you have jointly agreed. The person providing the expert medical evidence should meet you, as well as read your GP records and other medical reports before providing their evidence. They will sometimes need to come to the preliminary hearing to answer questions about their evidence. |
This guide covers the law and process in England and Wales. The process is slightly different in both Scotland and Northern Ireland. Find out more about the process in Scotland from Citizens Advice. Find out more about the process in Northern Ireland on Industrial Tribunals and the Fair Employment Tribunal. (This information about Northern Irish process is very brief so read these guides for more help on how to do things). |
September 2024
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If you are offered judicial mediation it is usually a good idea to take it. Judicial mediation is when an employment judge tries to help you and your employer reach an agreement.
In some areas, very complex discrimination or whistleblowing cases may be offered another alternative dispute resolution process. At the time of writing, it is unclear if this will be rolled out nationwide or when.
It can be really helpful for people who don’t have a solicitor to have a judge help both sides focus on whether you can come to an agreement. If you are able to, you avoid all the stress and of the hearing, and you know what the outcome will be.
Judicial mediation is usually only offered in more complex cases like discrimination or whistleblowing, which need a hearing of 3 days or more.
If your employer asks you for information or evidence you should provide it even if it would harm your case. The only exceptions to this would be if it would contain personal information you don’t want to share that is not relevant to the case.
Try to agree with your employer what you will send. Explain why you don’t think something is relevant. Or if, for example, they ask for your medical records and you don’t want to share your entire medical history, you could agree to only send medical records for the year the problem occurred.
If you cannot agree, tell the Tribunal. They will then decide whether the information or evidence needs to be shared. You have to do as they say.
If the Tribunal thinks that you are not very likely to win your case, or a part of it, they can order you pay a deposit of up to £1,000 as a condition of the case (or part of it) being allowed to continue. You may not get this amount back if you don’t win your case, or the part of it that the deposit was connected to. If you continue and do not win, there is also a possibility that you may be asked to pay some of your employer’s legal costs.
If this happens to you, think very carefully about continuing your case (or that part of it). If you possibly can, you should get advice before continuing. The employment tribunal will take your ability to pay into account when deciding the amount of deposit(s).
Next >> Evidence and witness statements for the employment tribunal
The information in this guide applies to England and Wales.
The law is complicated. We recommend you try to get advice from the sources we have suggested.
The cases we refer to are not always real but show a typical situation. We have included them to help you think about how to deal with your own situation.
Advicenow is grateful to the Ministry of Justice for funding the creation of this guide under the Online Support and Advice Grant.
Advicenow would like to thank everyone who provided advice and feedback on this guide, particularly Chris Lake, Rebecca Thomas of 42BR Barristers, and editorial teams at Thomson Reuters who kindly peer reviewed it.
Please tell us about your problem. Knowing more about our users and what you found useful helps us get funding to keep our website going. We also want to hear if there is anything you didn’t like or couldn’t find so that we can be even more useful. It is OK to skip questions – but please press ‘submit’ at the end as otherwise we don’t get your response.
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