Kate has over eight years of experience as an employment and personal injury legal executive. She runs LawCat, a legal explanations website.
When you are considering bringing a claim to the Employment Tribunal, one of the most predominant thoughts you will have will be regarding your prospects of success.
Going to the Employment Tribunal is not something to be taken lightly; it will be a long and stressful process and will cost you financially in court fees and travel costs. It is wise to consider, early on, the likelihood of your claim being successful so that you can make a reasoned decision about whether or not you wish to proceed.
Considering the facts and possibilities of your claim can be difficult if you are unsure what the Tribunal will take into account when making a decision. This article will discuss some of the aspects of a claim that the Tribunal may consider when making their decision.
What Does the Tribunal Do?
To consider your claim and assess its strengths and weaknesses, you should have a basic understanding of what the Tribunal does. What is the Tribunal's purpose in a claim? This will help you identify what you need to show them to bring a successful claim.
In a nutshell, the tribunal has two ‘jobs'.
|Job||How It's Done|
1. To decide what happened.
This is done by listening to your version of events and your employer’s version of events, then reviewing all the evidence and taking the time to consider which ‘version’ is the most likely to have occurred.
2. To apply the law to the case.
Depending on the type of claim you bring, the Tribunal will have to consider various laws and procedures and how these apply in your case.
Can You Bring a Claim?
Not everyone who works has the right to bring a claim to the Tribunal; it is important to establish whether you have the right to claim before investing your time and money in starting a claim.
You will normally be considered to be an employee if you work regularly for an employer and have an employment contract which sets out the terms and conditions of your employment. However, you can still be classed as an employee without a contract if you fulfil certain criteria laid down by the government.
There is a chance you are not an employee if you are self-employed and only work for a company on a job-by-job basis. If you’re an agency worker or if you are on a zero hours contract, you may not be considered an employee, although the law around agency workers and zero hours contracts is changing all the time. Make sure you are up to date with the current law.
If You’re Not Sure About Your Employment Status, Find Out More
- Employment status: Overview - GOV.UK
Employment status (worker, employee, self-employed, director or contractor) affects employment rights and employer responsibilities in the workplace
Once you have established that you are an employee you need to know if you have been an employee long enough. Not every employee can bring a claim; you must have been employed for two years before you can bring a claim.
Lastly, you must bring a claim within three months of your dismissal or three months from when you handed in your notice. If you wait too long, you will lose the right to claim.
What Determines Whether Your Claim Will Be Successful?
Now that you have established if you are eligible to bring a claim and understand what role the Tribunal are there to perform you can consider the merits of your case.
There are two main elements that decide if a claim is going to be successful or not and those are:
- A consistent version of events
- Strong supportive evidence
You must be both consistent and have strong evidence to give your claim the best possible chances of succeeding.
Are You Consistent?
Does your version of events change with each retelling? Or do you keep to the same ‘story’ each time you tell it? It is easy with hindsight to lose track of what was said; it is also easy to allow our emotions to take control and exaggerate certain aspects of events depending on the emotions we feel when remembering them.
It is important to try and distance yourself emotionally from what happened between you and your employer. This is easier said than done but it is important as it will strengthen your standing with the Tribunal. You must keep your version of events factual and true. Do not allow your emotions to cause you to exaggerate or change parts of your recollection.
An easy way to do this is to write down what happened shortly after it occurred when events were still fresh in your mind, and you do not have the benefit of hindsight. Make sure to include as much detail as possible, the more detail you have, the easier it will be to keep a true recollection and provide consistent evidence to the Tribunal.
Check your recollection for parts that do not make sense or are difficult to explain. Make sure you understand everything that happened.
Make sure your account of events is consistent with your evidence, especially your grievance letter, meeting notes (if they have been wrongly recorded make sure you note this and point it out at the earliest opportunity), and your ET1 form (claim form sent to the Tribunal when you start your claim). Any discrepancies in your evidence and your verbal account will weaken your case. Saying one thing when you have said something different previously will make you seem a less credible source at best, or, at worse, make it appear like you are fabricating aspects of your claim.
Does Your Evidence Stand Up at Tribunal?
If your employer is disputing your claim, then it is highly likely that they will say that events happened differently to how you say they happened. What the Tribunal have to decide is which version of events is most likely correct. To prove that your version of events is accurate and your previous employers is inaccurate, you will need evidence, lots of evidence.
Evidence can come in many forms; it could be video evidence such as CCTV, or document evidence such as emails, receipts, letters, procedures, etc. or supportive statements from others who witnessed events.
Consider each point you are making; can you prove it? If not how can you change that? What can you find that proves what you are saying? Is there an email? Can someone back you up? It may seem harsh but what counts at Tribunal is what you can prove. If you say something happened and you cannot prove it, then your case is going to be weak.
Who Will Win?
It should go without saying that a case that is well presented with supporting evidence is far more likely to succeed than one which is poorly presented with little or no evidence. For example:
Sample Case: Mr. A
Mr A is claiming constructive dismissal. Mr A claims that he could not continue in his employment due to the harassment he received from his boss on a daily basis. Mr A goes to Tribunal and gives verbal evidence only. When questioned on what he has said Mr A changes his story multiple times and quickly becomes confused. While his employer arrives and provides verbal evidence which when questioned on he answers and remains consistent. The employer also provides written statements from other employees stating that the boss and Mr A had a good working relationship. The employer also has emails demonstrating how the boss interacted with Mr A on a daily basis. These emails show a professional and amicable relationship.
Sample Case: Mr. B
Mr B is claiming wrongful dismissal. Mr B was accused of stealing money from the company till, and arrives at Tribunal with CCTV evidence that shows another employee stealing from the till. Mr B also has all the paperwork from his investigation meetings and subsequent firing; these show that he demonstrated that it was not him stealing from the till and the employer refused to acknowledge his evidence. When providing his verbal evidence, Mr B remains consistent and calm even under harsh questioning.
Out of the two examples which case is more likely to win?
Who Will Win?
For each question, choose the best answer. The answer key is below.
- Who Will Win?
- Mr A
- Mr B
- Mr B
Interpreting Your Score
If you got 0 correct answers: If you guessed Mr A, then you would be incorrect. While it is not guaranteed (it is never guaranteed) that Mr B will be successful, he has a much higher chance of winning his claim than Mr A because he is consistent and has supportive evidence.
If you got 1 correct answer: If you guessed Mr B, then you would be correct. While it is not guaranteed (it is never guaranteed) that Mr B will be successful, he has a much higher chance of winning his claim than Mr A because he is consistent and has supportive evidence.
In conclusion, you must fulfil certain criteria to bring a claim. Once it has been established that you can bring a claim and you manage to give a clear explanation of events—an explanation that remains the same throughout the process and is strongly supported by evidence—your claim will have a greater chance of success.
This article is accurate and true to the best of the author’s knowledge. Content is for informational or entertainment purposes only and does not substitute for personal counsel or professional advice in business, financial, legal, or technical matters.
© 2017 Katie