Preparing an employment tribunal case
If you've got a problem at work that you can't sort out, you may be able to make a claim to an employment tribunal.
This page tells you what you need to do to get your case ready for the employment tribunal hearing.
A surprising amount of work goes into preparing a case for the employment tribunal. This preparation is very important. If you have a representative, they will do most of the work in preparing your case. Sometimes they will ask you to do certain things or provide information. It's important that you follow their instructions.
Make sure you've given all the information you have to your representative. Don’t hold anything back. If you remember something later that you haven’t mentioned before, make sure you tell your representative about this as soon as you can.
If you don't have a representative, you might be able to get advice on your case preparation. An experienced adviser, for example at a Citizens Advice Bureau, may be able to help you with some of the preparation. To search for details of your nearest CAB, including those which give advice by email, click on nearest CAB.
If there's something you're not clear about, you can contact the employment tribunals public enquiry line. They can’t give you legal advice, but they can help with queries and explain how the tribunal system works. Telephone 0300 123 1024 (Minicom: 01509 221564).
To find out more about having a representative acting for you in an employment tribunal claim, see What help can I get with a problem at work.
To find out more about making a claim to an employment tribunal, see Employment tribunals.
There may be other ways of sorting out your problem than making a claim to an employment tribunal.
To find out more about other ways of sorting out your problem at work, see Sorting out problems at work.
When you're preparing your employment tribunal case, you should think about what you need the tribunal to know. This is mainly telling your story of what happened to the tribunal.
Because there's a legal test for whether the tribunal believes your story, you will need to take all the evidence you can. If you haven't already, try to write down everything that happened in relation to your problem. It may be a long time before your tribunal hearing, so a written account of what happened can help keep things clear in your mind. It can also be useful for filling in the tribunal complaint form. If you kept a diary of what happened at work, this can also be helpful and may be important evidence in the hearing. If you have an adviser or representative, give them your written account of what happened.
Getting all the paperwork together is also important. You should get together:
- anything you've written down about what's happened
- your contract, if you've got one, and any other documents about your employment like pay slips or salary details
- any letters, emails and mobile phone texts from your employer or any other people you work with about the situation
- your witness statement
- if your case includes a claim for loss of earnings you should also bring evidence that you've been applying for other jobs
- anything else that concerns your employment.
Even if you don’t think it’s important, make sure you get everything together. Show it all to your adviser or representative if you have one. Don't write any comments on these documents, as they may have to be photocopied for the tribunal. If you want to make notes or comments, do this on a separate piece of paper.
If you're preparing your own case you should set up a file and keep everything in date order. There can be lots of paperwork involved in a case. It's easy to get into a muddle if you don’t have a system for keeping your papers in order.
Often your employer will bring the relevant papers, because they should have these, including those that are internal to the organisation. You may need to speak with your employer or their representative before the hearing to agree who's bringing different papers, and who's going to produce the bundle.
Sometimes the employment tribunal will give directions or orders. These are instructions about what should happen in the case, to make sure things are happening properly and on time. For example, there might be directions about deadlines for when you and your employer have to send each other witness statements or other documents. Treat directions and orders from the tribunal seriously as there may be problems if you don't do what's instructed.
Always read any letters from the tribunal carefully. If you're not sure what the tribunal is saying, get advice from your adviser or representative, or call the employment tribunal public enquiry line. You can find their contact details in What help can I get with a problem at work.
If you have a representative, they should make sure that directions and orders from the tribunal are carried out.
A bundle is the file of documents that the tribunal will need to look at during the hearing. These documents are the evidence in your case. Usually your employer will produce the bundle, partly because they should have all the documents that need to be in it.
If you have a case management discussion, you may want to ask for an order for your employer to produce the bundle. You'll only usually have a case management discussion if you have more than one claim or you're making a discrimination claim. It's aim is to clarify the issues in the case and agree a timetable, for example, to exchange witness statements.
You usually need to agree with your employer what documents should be put in the bundle. There can be disagreements about this. If so, two bundles may be produced – one by you and one by your employer. But tribunals don’t like this because it can make following the evidence difficult, so try to agree documents with your employer if you can.
If you have a representative, they will produce the bundle if they need to. If you don't have a representative and you need to produce the bundle, you should include in it all the documents that are important to your case, and that you want to refer to at the hearing. There is a standard way that the bundle should be put together.
If you don't have a representative helping you, there may be an organisation which can give you advice on what should be in the bundle.
For details of organisations that might be able to help, see What help can I get with a problem at work.
If you're producing the bundle, you need six copies - one for each member of the tribunal panel, one for the employer, one for you and one for the witnesses.
The employment tribunal will want to hear evidence from you and any other witnesses on your behalf.
Both you and your witnesses must do this in an organised way. The usual way to give evidence is by writing a witness statement. This is an important document and you should take care when you write it. You’ll only need to write your own witness statement. Any witnesses giving evidence for you will write their own witness statements.
The most important evidence in your case is the evidence that you give yourself, so make sure you include it in your witness statement.
It’s usual for the tribunal to order you and your employer to exchange your witness statements 1 or 2 weeks before the hearing so that each side can see what the other is going to say and prepare questions for cross-examination. You won’t have to read the witness statement out loud at the tribunal.
The tribunal will not allow you to add anything or change your evidence once the witness statements have been exchanged unless there is a very good reason, so it's important to get your statement right. You usually won’t be able to verbally add anything to your witness statement on the day either.
For more information about cross-examination, see Employment tribunal hearings.
Writing your witness statement
If you have a representative, they will help you prepare your witness statement to make sure your evidence is properly organised. They should check with you that you're happy that it's accurate.
If you don't have a representative, you will need to do your witness statement yourself. If you have trouble writing, an adviser should be able to help you with this. If you can, it’s a good idea to get an adviser to check through it anyway.
You can find details of organisations that might be able to help you in What help can I get with a problem at work.
Your witness statement should say what happened, in the order that it happened. It should be as clear as possible. You should use the full names of anyone you mention, but use the same language you would normally use. Don’t try to make it sound posh for the tribunal or use words you don’t understand. If there was any bad language used during the situation your case is about - including by you - you should put this in. Don’t be embarrassed by this as tribunals are used to hearing bad language in cases.
You should type up your witness statement and send it to your employer or their representative before the hearing. They should do the same and let you have their witness statements. The tribunal will usually make an order for the date when witness statements should be exchanged. It's a good idea to agree a date with the employer for when you both send each other witness statements. This is so that they don't see your statement before they write theirs.
Asking work colleagues to be witnesses
You can ask work colleagues to be witnesses, but make sure the person you're asking has something relevant to say. For example, if they witnessed what happened leading up to your dismissal, their evidence may be useful if the employer says something different happened. But don't take a character witness. The tribunal wants to know about what happened, not about whether you're a nice person.
Also make sure that anyone you ask to be a witness can come to the hearing. The tribunal will usually ignore a statement from someone who isn't there, because they can't question them about their statement. So a witness statement from someone who can't come to the hearing isn't worth much.
Getting witnesses to attend a tribunal can be difficult, particularly if they still work for the employer. Witnesses often promise to come but then get cold feet before the hearing and don’t turn up. But it is possible to get an order from the tribunal to make a witness attend the hearing.
If you have an adviser or representative, they can help you with this, or you can call the employment tribunal public enquiry line to ask how to do this. You can find their contact details in What help can I get with a problem at work.
Don't think that a case is won or lost by the number of witnesses each side has. It is quite normal for the employee to have no witnesses and the employer to have many. The number of witnesses is not relevant to the outcome and many employees win their case without having any witnesses on their side.
A preliminary hearing takes place before the main employment tribunal hearing. It helps the judge understand your case and make arrangements for the main hearing. You might be asked to go to a preliminary hearing if your case is complicated or involves discrimination. They don’t happen for every case.
At a preliminary hearing the judge could:
- decide when the main employment tribunal hearing will be
- discuss specific parts of your case
- decide whether any of your claims or your employer’s responses should not be discussed at the main hearing (this means that they are ‘struck out’)
- agree for a Judicial Assessment to take place (an informal assessment of your case before the main hearing)
You’ll receive a letter telling you if your case will have a preliminary hearing. The letter should explain what will be discussed at the hearing - if you’re unsure you can write to the tribunal and ask them to let you know.
The date of your main employment tribunal hearing will be agreed at the preliminary hearing. It’s important that you tell the judge about any dates when you or your witnesses aren’t available.
A Judicial Assessment is an informal assessment of your case where a judge will tell you whether they think you are likely to win or lose - and how much compensation you might get.
A Judicial Assessment could be a good idea if you think you have a strong case. The judge’s assessment could persuade your employer to settle without going to a full tribunal.
You might also decide not to go to a tribunal if the judge tells you that you are unlikely to win your case or it is worth less than you thought.
You can ask for a Judicial Assessment if:
- you've been asked to go to a preliminary hearing
- your employer agrees for it to take place
To get a Judicial Assessment you can either:
- ask for one at a preliminary hearing
- request one on the case management agenda form that you have to return to the tribunal before the preliminary hearing
When you fill in the ET1 Employment Tribunal Claim form make sure you give as much detail as you can. It’s important that you have explained your case because the judge will make their assessment using this form and whatever has been said in the preliminary hearing, without hearing any evidence or witness statements.
You won’t get anything in writing from the judge about what has been said in the Judicial Assessment. Try to take notes in case you need to get more advice about what’s been said.
You do not have to accept the judge’s recommendations in a Judicial Assessment - you can choose to proceed to a full employment tribunal if you prefer.
For the next steps in taking action about problems at work, see Employment tribunal hearings.
For more information about how to sort out problems at work, see Sorting out problems at work.