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Top tips for defending Employment Tribunal claims

Last week the Ministry of Justice published Tribunal statistics for the period from October to December 2017. The report shows a staggering 90% increase in the number of Employment Tribunal claims since the abolition of tribunal fees on 26 July 2017. 

For many employers, this means they might be facing an Employment Tribunal claim for the first time.  It is easy to panic in the face of litigation, however, if a Tribunal claim lands on your desk, it is important to act quickly and calmly, to ensure that you are in the best possible position to defend the claim.  Here are our top tips on what you need to do:

1.         Make use of the ACAS process.  All employees must follow the ACAS early conciliation process before submitting a claim.  The early conciliation process provides an opportunity for the parties to settle their workplace dispute without going to court.  If you receive notification from ACAS that an employee or ex-employee intends to lodge a claim with the Tribunal, you will have the opportunity to speak to an ACAS officer about the claims that are alleged and what the claimant is looking for to settle.  Settlement at this stage will not always be appropriate, but you should weigh this up carefully, bearing in mind the strength of the case and the time and cost involved in defending a Tribunal claim.

2.         Respond to the claim in time!  You will usually have 28 days from receipt of the ET1 Claim Form to submit your defence to the Tribunal.  The claim notification sent to you by the Tribunal will include a copy of the claim and the date you need to respond by.  It is imperative that you do not miss this deadline.  If you do, you could be denied the opportunity to play a part in the proceedings (unless you have agreed an extension with the Tribunal). 

3.         Take care when completing the response! You will need to complete an ET3 response form.  The Tribunal will send you a copy of this form and it can also be found online.  You can use a separate sheet to provide full details of the reasons why you are resisting the claim if the claim is complex.  Pay attention to detail and ensure that the facts are correct.  It is important that you respond to all of the allegations raised by the Claimant as it might be difficult to add new grounds of defending the claim at a later date.  Also, bear in mind your credibility could be impacted if there are inaccuracies or inconsistencies in your response document which come to light at the Tribunal hearing.  If the claim is complex, seek legal advice at an early stage in the process.

4.         Check for any cracks in the claimant's case.  The claimant must comply with early conciliation before lodging the claim.  They must quote the early certificate number in the claim form and the respondent's name on the certificate must match the name of the respondent on the claim form.  If the claimant is claiming against more than one respondent, they must have separate certificates for each respondent. There are strict time limits for submitting claims and it is important to check that the claim has been submitted "in time".  The Tribunal won't necessarily pick up on these points, so if you notice a crack in the case, make sure that this is clearly stated in your ET3 response as, there could be grounds for asking the Tribunal to consider a strike out. 

5.         Gather information at an early stage.  Speak to the individuals involved and ask them to search for any relevant evidence such as contracts of employment, personnel files, notes or minutes from meetings and emails or letters.  There will often be a considerable delay between a claim being lodged and the final hearing taking place.  It is important to get your "ducks in a row" at an early stage in the process.  This will also help you to assess the merits of the case objectively, whilst the evidence is still relatively fresh in everyone's minds.

6.         Comply with the directions set by the Tribunal.  If the Tribunal arranges a preliminary hearing, then make sure you take part in this.  The Tribunal will usually give directions on the steps that need to be undertaken to prepare the claim for hearing.  The claimant will be ordered to provide a schedule of loss which sets out the compensation that is being claimed.  Both parties will be ordered to disclose documents which are relevant to the issues in the proceedings so that a bundle of documents can be agreed.  A date will be set for the parties to exchange witness statements.  As long as both parties agree, it is possible to change the dates for these steps in the process.  However, if the Tribunal have specified page limits for the bundle or word limits for the witness statements, you must comply with these and will need to apply to the Tribunal if you want an increase.

7.         Collate evidence on mitigation  A large chunk of what the claimant will be claiming is likely to be based on future loss of earnings.  This will be subject to the claimant's duty to mitigate, which means the claimant should take reasonable steps to obtain a new job at a similar rate of pay.  However, the burden of proof lies with the employer to show that the claimant has not taken these reasonable steps. Therefore it will help your case if you can provide evidence that there were suitable jobs in the local area that the claimant ought to have been applying for.  Keep an eye on the local jobs market and start collating this information at an early stage.

The Tribunal process can be daunting and time-consuming.  If you would like assistance or advice on any aspect of defending an Employment Tribunal claim, Ashfords Solicitors have an experienced employment team who can help.

Whether it is unfair dismissal, discrimination or whistleblowing allegations that you are facing (or all three!), our team at Ashfords can provide you with detailed advice and tactical suggestions, draft your Tribunal documentation or even take control of the entire case on your behalf.

For more information contact Chloe Ricciardi, a senior solicitor based in the Taunton office of Ashfords LLP

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