This content was reviewed in April 2024.
Running your own team is rewarding, but if you find yourself being taken to an employment tribunal, it can be daunting, stressful and costly. Our legal experts from FSB Legal Protection Scheme explain what is involved in an employment tribunal, the issues that could cause one and the added protection available for FSB members at no extra cost.
What is an employment tribunal?
An employment tribunal takes place when your employee, or potential employee, believes you have treated them unlawfully and submits a claim to an employment tribunal. In Northern Ireland, claims in respect of employment disputes can be made to an industrial tribunal or the Fair Employment Tribunal, which deals with claims of discrimination in the workplace on the grounds of religious belief or political opinion.
Claims are heard by a tribunal independent of government and could include cases relating to issues such as unfair dismissal, discrimination or unfair pay. You may have to pay compensation to the employee or ex-employee if you lose the case.
What could cause an employment tribunal?
There are several issues that could lead to someone taking you to an employment tribunal.
- Not having a contract of employment, or having one which is unclear, leading to confusion regarding the employment relationship
- Outdated contracts which haven’t been changed in line with changes to your business operations, such as opening times
- Slow or late action in response to complaints such as discrimination
- Failing to follow codes of practice when dealing with disciplinaries or grievances
- Poor handling of inadequate performance leading to claims of unfair dismissal
- Not having professional help to advise and guide you to make the right decisions quickly and effectively
I’m facing an employment tribunal, what should I do?
The Advisory, Conciliation and Arbitration Service (ACAS) will contact you if someone is making a claim against you and offer to solve the issue through conciliation.
ACAS is an impartial body whose remit is to assist the parties with settling employment claims and disputes. It is not part of the employment tribunal service and ACAS will not discuss any matter with the tribunal. In Northern Ireland, the early conciliation service is provided by the Labour Relations Agency. See the fact sheet on the FSB Legal and Business Hub on ‘employment tribunals: ACAS Early Conciliation’ for guidance and, for employers in Northern Ireland, the fact sheet entitled ‘tribunals (Northern Ireland)’.
If a resolution isn’t reached and the employee or ex-employee proceeds to make a claim, you’ll receive a letter ((known as a ‘response pack’) about the claim against you, which you must respond to either online or in paper format on a standard ‘ET3’ form within 28 days.
FSB members should contact the legal advice line before taking any action.
At the hearing, you may be asked to produce documents such as contracts of employment, pay slips, details of a pension scheme and any relevant meeting notes.
You’ll need to present your case to the tribunal, but you can ask someone else to represent you, such as a lawyer.
FSB Legal Protection Insurance
In addition to access to advice from specialist employment solicitors via the FSB Legal Advice line (provided by Markel Law), FSB members can benefit from legal representation for employment matters under their FSB legal protection insurance. This includes cover at the pre-litigation stage, subject to the terms and conditions of the policy. Where a claim is accepted, the FSB Legal protection insurance covers the cost of legal representation at the ACAS Early conciliation stage. This pays for the time of a Markel Law employment lawyer to help you determine the best approach, where an employee or ex-employee brings or threatens to bring an employment tribunal claim. This may be to negotiate and settle early via the Acas EC service, or to withhold from negotiations and defend any future claim that may be brought when an ET1 claim form is received.
It is important to note that the cost of any settlement sum you offer to settle the claim at this stage would be at your own cost, and is not covered by the insurance.
To maximise your chances of having reasonable prospects of success in employment disputes, we strongly recommend that you call the FSB legal advice line number shown in your policy and follow their advice in the event of any actual or potential employment dispute.
In particular, we strongly recommend contacting the FSB legal advice line, which is provided by Markel Law, for advice:
- Prior to disciplining, suspending, dismissing, starting a redundancy process, or other dismissal process
- When making or proposing to make unfavourable changes to the terms of an employee’s contract of employment
- When notified of a grievance, a complaint of discrimination (such as sex, race, religion etc) or an appeal from an employee against action you have taken against them
- When an employee resigns or walks out after expressing verbal or written dissatisfaction
*Please note, this does not cover pursuit of an action. For memberships that started after 1 November 2020, there is no cover for claims where redundancy, alleged redundancy or unfair selection for redundancy occurs within 180 days of the start of membership.