Understanding employment tribunal rules: 10 key questions answered by experts

Your essential guide to legal risks, fair dismissals, disability, absenteeism, and more - straight from our very own Breathe Partners and employment tribunal experts.

Dealing with the possibility of an employment tribunal is a reality for today’s employers and HR teams. Whether you’re a business owner, manager, or HR professional, navigating employment law can be tough. But you don’t have to do it alone.

In Breathe's live Q&A, Dan Jenkins and Tracey Osmond from Access2 Human Resources tackled tough audience questions - sharing practical, experience-based answers (and a few memorable quotes).

Here are the top 10 questions from the webinar (catch it on-demand here), with expert advice, plenty of real-world context, and actionable takeaways.

To fully understand the process, we strongly encourage you to read the Employment Tribunal Rules of Procedure, as this is essential for both claimants and employers.

[Please note that the employment tribunal rules and procedures discussed here apply specifically to England, Wales, and Scotland, with some regional variations in tribunal operations.]

How can employers reduce legal risks and avoid tribunals?

Is it fair to dismiss someone after a failed performance improvement plan (PIP)? 

Can you fire someone for being a poor organisational fit?

What happens if a tribunal case is brought against a defunct company?

What are the time limits for tribunal claims, and what happens if you miss them?

Should you engage with ACAS or a solicitor if an employee threatens a tribunal without logging a grievance?

What documents do you need for a tribunal? Do you need a lawyer?

How should employers manage disruptive employees with disabilities (DDA)?

How do you make a fair ill health capability dismissal?

Do employees need to sign every policy? What if they claim “I didn’t know”?

1. How can employers reduce legal risks and avoid tribunals?

Let’s start at the top: “How do I reduce legal risks as an employer?” Dan’s opening was tongue-in-cheek, “Don’t employ anybody” but he quickly got down to business with practical advice:

“Ensure you have the correct paperwork, the right documentation, the right employment contracts, the right policies and procedures… and keep them updated regularly.”

Dan Jenkins, Access2 HR

Understanding employment tribunals in the UK starts with the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. This is the core rulebook for how cases are handled.

Here's what those rules mean for you:

• The basics: Learn how claims are submitted, how to respond, and how hearings run. Get a clear overview from the GOV.UK guide on employment tribunals.

• The President's role: The Tribunal President issues practice directions and case management orders to keep proceedings efficient. They guide the process, but Parliament sets the actual rules.

• Case management orders: Judges use these formal directions to tailor each case, setting deadlines and managing document sharing to ensure smooth progress.

• Beyond the process: The regulations also detail steps for applications, dismissals, hearings, remedies, and costs. Dive into the full legal text at legislation.gov.uk, or get a practical breakdown from ACAS’s employment tribunal guide.

Our advice: Understand your responsibilities and rights. Seek professional advice early to avoid common pitfalls. Stay informed and connect to one of Breathe Partners for your employment tribunal needs.

Dan warned that even if you only use contractors, you could accidentally “become an employer without anybody knowing.” So, document everything, follow up-to-date procedures, and when in doubt, take advice.

2. Is it fair to dismiss someone after a failed performance improvement plan (PIP)? 

Tracey broke it down: “The short answer is yes… However, you would need to follow a fair process.”

Set a clear, specific PIP, support the employee, and if there’s still no improvement after a reasonable time and warnings, you can let them go. 

"Can you dismiss someone after a failed performance improvement plan? Yes — but only if you've followed a fair and thorough process. That means having honest conversations, offering support and training, clearly outlining what ‘good’ looks like, and giving them enough time to turn things around. If there’s still no improvement, then dismissal may be justified."

Tracey Osmond, Access2HR

Want to watch the full webinar on-demand? Catch it right here

3. Can you fire someone for being a poor organisational fit? 

In our live employment tribunal Q&A, Tracey covered this and the answer is no, not really:

“Poor organisational fit doesn’t really fall into our bracket of the five fair reasons.”

More flexibility exists for staff with less than two years’ service at the moment, although this is set to change due to the Employment Bill due to come into force next year, but always, always check before taking action.

"Can you dismiss someone for being a poor organisational fit? In most cases, no — it’s not one of the five legally fair reasons for dismissal, like conduct, capability, or redundancy. But if the employee has been with you for less than two years… you might be able to end their contract — as long as there are no legal risks. It’s a grey area, though, so it’s always best to get professional advice before taking action."

Tracey Osmond, Access2 HR

4. What happens if a tribunal case is brought against a defunct company?

Dan explained:

“If the tribunal has already been scheduled, it will proceed… Usually, the claim sits with the insolvency practitioner along with other creditors.”

In other words, a tribunal case can go ahead, but collecting any financial award may depend on the administration process.

5. What are the time limits for tribunal claims, and what happens if you miss them?

Time limits are one of the most critical aspects of the employment tribunal process. For most claims, such as unfair dismissal or discrimination, the time limit is three months less one day from the date of the incident or termination.

Missing this deadline can mean your claim is dismissed before it’s even heard, or, if you’re an employer, you could lose the chance to defend yourself.

Different types of claims may have different time limits, so it’s vital to check which rule applies to your situation. If you’re an employer responding to a claim, you’ll usually have 28 days from the date you receive the claim to submit your response. Failing to respond in time can result in a default judgment against you.

Dan covered this in our webinar 'How to avoid an employment tribunal':

"Three months is usually the cutoff point. Following that, an employee cannot bring a claim unless the tribunal deems it just and equitable to extend time limits for some reason. So…if an employee has missed the three month deadline, they can apply to the tribunal asking them to have an extension of time and explain the reasons why. And the Employment Tribunal will consider that."

If you need more time, you can request an extension, but you must provide a strong reason for any delay, tribunals have discretion, but they don’t grant extensions lightly.

To avoid problems, document all key dates, act promptly, and seek legal advice as soon as you’re aware of a potential claim. Staying on top of time limits helps you manage proceedings effectively and ensures you’re not caught out by procedural rules.

6. Should you engage with ACAS or a solicitor if an employee threatens a tribunal without logging a grievance?

Dan’s answer was clear here:

“What the employee has to do before you can go to tribunal is something called pre claim conciliation, which is mandatory through ACAS… If they haven’t raised a grievance, it presents a weaker case… but it doesn’t prevent them from bringing a claim.”

Dan Jenkins, Access2 HR

Use this opportunity to clarify any issues, gather information, and seek advice. ACAS and solicitors can help employers resolve legal disputes before they escalate to a tribunal.

Expert HR or legal advisors are on hand to support employers through complex situations. It is the employer's responsibility to follow correct procedures and seek professional advice when facing potential tribunal matters.

7. What documents do you need for a tribunal? Do you need a lawyer?

Dan shared the following:

“You don’t have to have legal representation… But legal representatives have the experience and technical knowledge to present your case. Paperwork is critical—employment contracts, signed policies, evidence you behaved reasonably and fairly.”

If you’re not legally represented, make sure your documentation is bulletproof.

"You don’t have to have legal representation at a tribunal — but it can really help. Legal reps know how the process works, what the tribunal panel is looking for, and how to present your case effectively. Claimants often represent themselves and sometimes see the hearing as a chance to clear their name. But tribunals aren’t about proving whether someone did or didn’t do something — they’re about whether the employer acted fairly and followed the right process. That’s the key focus."

Dan Jenkins, Access2 HR

Preparation is key when facing an employment tribunal. Employers should gather all relevant documents, including the ET3 response form, employment contracts, policies, witness statements, and any correspondence or evidence related to the dispute.

You may also need to disclose documents such as personnel files, emails, and meeting notes to the other party as part of the tribunal process.

While you are not required to have a lawyer, legal representation can be invaluable. A solicitor can help you understand the tribunal rules, prepare your documents, and present your case effectively at the hearing.

Even if you choose to represent yourself, make sure you are familiar with the procedures and have all your paperwork in order. Proper preparation and a clear understanding of the rules can make a significant difference to the outcome of your case.

8. How should employers manage disruptive employees with disabilities?

Managing disruptive behaviour in the workplace is always challenging, but when an employee has a disability, employers must take extra care to follow the law. The Equality Act 2010 requires employers to make reasonable adjustments to support employees with disabilities and to ensure they are not treated less favourably.

Tracey shared some empathetic but practical advice on this:

“You have to follow a fair process, and ask what you can do to help them — like reasonable adjustments.”

Reasonable doesn’t mean unlimited. Support the individual, but if after adjustments the disruption continues, follow a documented process, ensuring any eventual dismissal is about performance, not disability.

Dan also added:

“It’s important to differentiate between what, if any, behaviour is attributable to their health or medical condition… and which isn’t. That’s handled via your investigation process.”

Start by following a fair and consistent procedure: investigate the issues, provide support, and consider what adjustments might help the employee perform their role.

This could include changes to working hours, duties, or the work environment. It’s important to document every step and to involve the employee in discussions about what support they need.

If disruptive behaviour continues despite reasonable adjustments, you can manage the situation as you would with any other employee, but always ensure your actions are based on evidence and are not discriminatory.

If you’re unsure, seek advice from a solicitor or HR expert to make sure you’re meeting your legal obligations and supporting your team effectively.

9. How do you make a fair ill health capability dismissal?

Tracey suggested:

“Always have an impartial occupational health assessment… The report may recommend reasonable adjustments, try them. If the employee is still unable to do the job, you can move towards dismissal, but do it sensitively and with evidence you tried everything possible to help.”

Consider redeployment if possible, and keep the employee in the loop at every stage.

"For a fair ill health capability dismissal, you need to follow a clear, compassionate process. Start with an investigation and get an impartial occupational health assessment — this helps you understand what support or reasonable adjustments might help the employee stay in their role. If adjustments are made but the employee still can’t return to work or perform their duties, consider redeployment or, as a last resort, consult on ending their employment. It’s all about giving them every opportunity to succeed before making that decision."

Tracey Osmond, Access2 HR

10. Do employees need to sign every policy? What if they claim “I didn’t know”?

Dan said:

“Wherever possible, get a signature on a piece of paper… But if employees have access and the policy was issued, arguing ‘I didn’t sign’ usually doesn’t hold water. By accepting employment, they are affirming the contract—even if they haven’t signed every policy.”

A signed document is safest, but don’t panic if you’ve demonstrated they had access and training.

The Q&A also covered:

- Flexible working: Be fair — offer the same opportunities where possible, and run a transparent process for requests.

- Sickness/absenteeism: Hold return-to-work meetings, and document everything. Spot patterns, investigate underlying causes, and follow formal absence procedures if issues persist.

- Retirement/reducing hours: “Terms and conditions can only be changed with mutual agreement.” Don’t force older workers to reduce hours if they’re still capable and want to work.

You can watch the full webinar on-demand right here

Key takeaways

Above all, as Dan and Tracey repeated throughout:

• Clear records and honest communication are your best defence.
• Every case is unique—practical, fair processes matter more than ticking boxes.
• If in doubt, “give us a shout!”

Their closing words? You don’t have to face these challenges on your own - get HR advice, connect with your network, and keep learning.

Which of these top 12 questions do you face most often? Which keep you up at night? Let us know in the comments, Dan and Tracey will almost certainly have an answer for you.

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