Defending an employment tribunal claim

If you’ve received notice that an employee has filed one or more claims in the employment tribunal against you or your company, it’s a good idea to ask an employment solicitor to advise you on the correct procedure before you begin the process.

We’ve the experience and the expertise to advise you on every step of the employment tribunal procedure to ensure that you remain compliant with the law, correct processes and deal with the claims fairly and properly.

It’s also crucial to keep an open mind to settlement throughout the proceedings and we can advise on when settlement may be your best option and at what level.

What are the initial steps in defending an employment tribunal claim?

You’ve 28 days from the date that the tribunal sent a copy of the claim form to you, so you should diarise this date to ensure it’s not missed. The notice of the claim will also include other dates and deadlines that you should diarise. You need to review which claims are being made, whether ACAS early conciliation requirements have been complied with, what their employment status is and whether they’re able to bring the claim(s), whether the claim(s) are in time and any other jurisdiction or applicable law issues.

These questions can be complex and can determine the course (and success) of the claim at the beginning, so it’s advisable to obtain expert legal advice at this stage. You’ll also need to gather relevant documentation and information.

What should be considered when preparing the response to the claim(s)?

Your response (to be submitted to the tribunal within 28 days of the tribunal sending a copy of the claim form to you) should be completed using the ET3 form, which is a standard form and will usually require grounds of response to be attached, addressing each paragraph and claim in the employee’s grounds of claim.

It’s likely that you’ll require legal advice on the prospects of success of each claim and its quantum (a reasonable estimate of the employee’s likely compensation if successful). Your response is an important document in setting the course of the claim and what the legal, factual and jurisdictional issues are that the Tribunal will need to determine - therefore expert legal advice is important at this stage.

What happens after the response to the employment tribunal claim?

The claim form and response need to be reviewed to identify the relevant issues to be determined, as well as identify witnesses. This is also when you need to consider what applications or requests for further information and details from the employee are required or whether there are grounds to apply for any or all of the claims to be struck out.

The following are the various stages in an employment tribunal claim:

• Preliminary hearing – Usually, the initial notice of the claim will set the date for the preliminary hearing. The preliminary usually determines administrative issues, such as dates and further directions to prepare and progress the case up to the final hearing as well as the issues to be determined at final hearing. It can also determine preliminary matters, such as jurisdiction issues, whether the claim (or part of it) should be struck out, or whether a deposit order should be made (a payment into the Tribunal to continue the claim, usually by the Claimant). This is an important stage as it sets the tone and determines the proceedings of the case.
• Disclosure – Both parties will be obliged to disclose to the other party and the tribunal all documents they have that are relevant and necessary to the issues of the case. This can be a substantial exercise and is a strict duty on both parties. You’ll need advice on your search and what can and cannot be disclosed, as there are a number of restrictions. There may be a request for specific disclosure required too.

• Hearing bundle – Usually you as the employer will be ordered by the tribunal to prepare the hearing bundle. The parties must decide which documents are to be included and in doing so consider whether the parties will make submissions about the document, whether any witnesses will refer to the document and whether the parties will cross-examine the other’s witnesses about the document. It’s a specific and important process which is important for the preparation of witness statements and the final hearing.

• Witness statements – Witnesses need to be identified and a statement from each is required. This will be their evidence-in-chief to the tribunal. Again, they’re important documents and while they are a witness’s own document and words, they should refer to the hearing bundle and provide evidence on the relevant issues at hand, which is important when the final hearing takes place.

How do I prepare for and handle the final hearing?

There a number of important steps such as checking witness statements and page number references, instructing Counsel, considering further applications, preparing a skeleton argument, preparing the requisite number of bundles for the Tribunal and parties and preparing your witnesses. This will likely be the first time any of your witnesses have been inside a Tribunal or courtroom and therefore to receive appropriate legal advice beforehand is valuable and we can provide this.

What can I do now?

The best time to act is before any issues arise. You should obtain expert employment law advice as soon as possible, either on receipt of a tribunal claim, or preferably prior to a claim being made, as you may be able to avoid having a claim made against you altogether. This is ideal as there is a register of employment tribunal claims which is in the public domain and once the claim is issued, the name of the case will appear on the list even if the parties settle and the claim is withdrawn.

If a current of former employee has issued an employment claim against your business speak to our experience employment lawyers about your defence. Call today on 0330 041 5869 or contact us and we’ll call you back.