Steps you can take when losing an Employment Tribunal

The Origins of Employment Tribunals 

Employment tribunals are not a new thing. They were previously called industrial tribunals and first took place in 1964. Initially, employment tribunals only dealt with a small number of issues. As time has moved on, there are more and more reasons why employment tribunals take place, including discrimination claims, unfair dismissals, whistleblowing, unpaid wages, and more besides.

Avoiding Formality

Tribunals are not the most pleasant of experiences for employees or their employers no matter which side you are on. As such, the rules for governing tribunals make it clear that you should avoid this formality wherever possible. Winning is certainly not guaranteed, mainly if you are an employee making a claim. Statistically, employment tribunals resolve most often in favour of an employer.

The number of tribunal claims is also falling. In 2013, for example, the number of claims dropped by two thirds. This was partly due to the introduction of payment if you wish to claim in the same year. This was subsequently abolished with claims now being free to make once again.

If you want to avoid losing an employment tribunal, many say that the best course of action is not to claim in the first place. Of course, this is not always possible and nor should it be. Employment tribunals are there for the perfect reason.

Most claims do not get to the hearing stage because many are already settled before a hearing is reached. This means that most employees (former or otherwise) are successful in receiving payment before the hearing.

Employers win most cases

As alluded to above, in most cases, the employers come out on top and win at employment tribunals. Why is this the case? The tribunal should always be impartial and fair, and the presiding judge has a responsibility to ensure it is so. 

However, there is no requirement that parties need to have representation. As a result, many employees do not take this path, but their employers (who usually have legal representatives on hand) do. This is widely accepted as one reason why employers tend to have more success in employment tribunals. 

The risks of losing to an employer (i.e. the potential for a payout in a six-figure sum) significantly outweigh the cost of a representative in the tribunal.

What happens if you lose?

Depending on your case type, the tribunal orders specific steps to be undertaken by the losing party. For employers, this could be:

• reinstating an employee in their job
• if you cannot reinstate the employee, paying compensation
• paying expenses to witnesses
• paying for loss of earnings or damages

Paying compensation is the most frequent resolution in a tribunal. There are often limits as to what can be awarded, but in the case of discrimination, there are no set limits. The compensation amount usually covers the financial losses the employee has experienced as a direct result of their employer’s actions. There is also interest calculated from the day the decision is made. 

However, an employer does not need to pay this interest if the compensation is awarded in full within the first 14 days. A court can take an employer to court and force them to pay. The government can also fine employers if they fail to pay and will name them too.

Paying back other amounts

If an employee has had to claim any financial allowances or benefits as a result of the employer, the employer can also be required to pay these back. These benefits can include Job Seeker’s Allowance, Employment Support Allowance (ESA), and Income Support.

There is a specific unit (the Compensation Recovery Unit) which informs employers how much they need to pay and how to do it.

Disagreeing with the Judgment

If you disagree with the judicial decision that was made in an employment tribunal, there are things that you can do. Under certain circumstances, you can request that the tribunal reconsiders their judgment.

Within 14 days of the decision, you should write to the tribunal office outlining why you wish for them to reconsider the judgment. It would be best if you gave good and valid reasons, such as:

• There was a mistake in how the tribunal reached a decision
• You were no present at the hearing or did not know about it
• There is new evidence that they should consider

You should send your letter directly to the employment tribunal office where your case was heard.

The Appeals Process

If a decision does not go your way and you believe that you still have a case due to the employment tribunal making a mistake legal, you can appeal their decision. This applies in certain situations, including:

• it did not apply the law correctly
• it did not apply the right law
• it failed to follow procedures which affected the outcome
• there was no evidence in support of the judgment
• it was biased unfairly toward the opposing party.

You should seek legal advice if you wish to appeal an employment tribunal decision. The Employment Appeals Tribunal (EAT) is independent of the government, and it will consider both sides before its decision.

If they have not sent it already, you should ask the employment tribunal to send through their reasoning behind their decision. If you have not received this information, you can still begin the appeals process.

The EAT must follow certain rules in its decision making. You can read these here. Before you begin, you can seek free advice from Citizens Advice (in Scotland here).

To contact EAT, there is an enquiry line which offers information:

Telephone (England and Wales): 020 7273 1041

Telephone (Scotland): 0131 225 3963

Losing an Employment Tribunal

As mentioned, losing an employment tribunal is common. It depends on so many factors. Ensure that, before you begin a claim through an employment tribunal, you have all the information required to begin the process. Seeking legal advice is always recommended. If you lose, all is not lost. Many an appeal has been won, so do not lose hope at this stage and get in touch with one of our employment solicitors to help you on this journey.