Before you can start a case at employment tribunal

If you are still employed, you first need to try to sort out any problems directly with your employer.

You can do this by speaking to your boss or someone else about the problem informally or using your employer’s formal grievance procedures. The only reason not to do this would be if the time limit for starting a case at the employment tribunal was nearly up. In which case you should tell Acas you want to take a case to the employment tribunal as that stops the clock to allow time for ‘early conciliation’ (see Tell Acas below).

If the tribunal decides it was unreasonable of you not to have followed your employer’s grievance procedure (or disciplinary procedure if that is appropriate) any compensation you win could be reduced by up to 25%.

September 2024

In most cases, you can only take the case against your employer – that is the organisation that employed you (or might have if you had got the job).

If you work for an agency, you can usually take the case against both the agency and the employer they placed you with. 

In discrimination and whistleblowing claims, you can choose between taking the case against your employer, or the individuals who discriminated against you, or both. It is usually best to bring the claim against the employer because, if you win, they are most likely to be able to pay up. But you may want to name the individuals as someone you are taking the claim against too in some circumstances:

1. If there may be an argument about whether the employer can be held legally responsible (what the law calls ‘vicarious liability’) for the individual’s actions. 
2. If the employer may argue that they are not responsible for the discriminatory actions of their employee because they took sufficient steps to avoid any discrimination.
3. If you think the employer might not be able to pay up if you win and the individual will be. 
4. If you think, tactically, it will encourage them to settle. 

Remember if you bring your claim against the individuals who discriminated against you as well, you may have to do early conciliation with them.

If you just take your case against the employer, and they do argue that they are not responsible because they took enough steps to avoid discrimination, you can then ask the employment tribunal for permission to add the individual(s) as respondents. But they may not agree. It is best to add the individuals as respondents from the beginning.

You must tell Acas that you want to take a case to the employment tribunal.

You do that using Acas’ online form. If you cannot do that for any reason you can phone them (0300 123 1122 or UK text relay: 18001 0300 123 1122, available Monday to Friday, 9am to 5pm).

You then have a choice about whether you try early conciliation or not. Early conciliation is when Acas speak to both sides on the phone to help you each understand how tribunals have dealt with similar cases, and see if you could come to an agreement. It usually takes place over 6 weeks.

Remember that Acas conciliators are not on your side

They are not on your employer’s side either. Some advisers say that their primary motive is that you settle the case so that you do not take the case to employment tribunal, rather than a fair outcome.

If you can, it is best to get independent advice about whether you should accept any offer to settle. If you cannot get advice, use your own judgement to weigh up whether the suggested offer is fair, given that it would save you the stress, time, hassle, and uncertainty of taking a case to tribunal. See our advice on negotiating a settlement with your employer  and Should I take my case to employment tribunal. 

Any agreement you do come to through Acas is legally binding, which means both sides have to stick to it - it is the same as if a tribunal ordered it. If you reach an agreement, you can’t later make a claim to the tribunal about the same thing.

We would always advise you to try early conciliation if your employer is willing. (Unfortunately, often employers are not willing, but that may change once the case has started.) See Reasons to agree a settlement.

If you don’t reach an agreement or your employer isn’t willing to try, Acas will provide you with a number on an ‘early conciliation certificate’. You need that number to start a case at the employment tribunal, you should do this as soon as possible.

In most cases you must do it within one calendar month (in some cases you may have more time).

Don’t put it off - the longer you have the less stressful it will be. If you get something wrong and your claim is rejected, you may need time to correct it.

You can still have discussions with your employer through Acas to try to arrive at a settlement after you have started your tribunal claim.

Next >> How to negotiate an out of court settlement to avoid an employment

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. 

Acknowledgements

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.

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