Real Employment Law Advice

Defending a claim in the Employment Tribunal

Table of Contents

Introduction

You have received notice from ACAS of a potential claim by a former employee or you have opened the morning post to find that you have received a letter from your local Employment Tribunal advising you that your former employee has actually made their claim against you and you have to complete your defence form, known as an ET3, within 28 days.

What do you do? Panic, throw it in the bin, scream and shout! Whatever your method of dealing with it, I am here to help you through it by taking away the stress from you and making the process as smooth as possible. I will ensure that you utilise as few resources as possible both with your time and money.

What should you know about defending a claim in the Employment Tribunal?

  • The legal costs you may incur if you decide to defend the claims.
  • Your prospects of success.
  • The potential cost if you are unsuccessful in defending the claim.
  • The management time you may have to commit to defending the claim.
  • The commercial reality of trying to settle the case early.

From May 2014 it will be mandatory for all employees who wish to pursue a claim in the Employment Tribunal to contact ACAS before making their claim. This means that you will hear about the employee’s intention to pursue a claim from the assigned ACAS officer before you receive a copy of their claim form.

If you decide not to enter into settlement negotiations via ACAS the employee may then pursue their claim to the Employment Tribunal.

How to start defending a claim

You must submit your response to the Tribunal using the standard ET3 form and this must be received by the Tribunal within 28 days of the date it is sent to you.

Normally the Tribunal will include an ET3 form with the notification and they will also confirm the deadline for responding.

You can also find a copy of the ET3 form online by clicking here

Not enough time to respond – Extension of time

If you are unable to submit your response within the deadline of 28 days you can apply for an extension from the Employment Tribunal.

The Employment Tribunal will consider if it is just and equitable to grant an extension of time and therefore it is important to include full reasons why you are unable to complete the response in time.

What happens after you send back your ET3 defence?

The Employment Tribunal will send a copy of your defence to the employee, known as the Claimant.

The paperwork will then be considered by an employment judge who will decide from the paperwork if the claim or your response, should be struck out, either in full or in part, because it has no reasonable prospects of success.

The judge will also consider whether the claimants claim can be dealt with within the Employment Tribunal’s jurisdiction. If not the claim, or parts of it will be struck out.

If the judge decides the case should proceed they will decide on any case management requirements in readiness for the final hearing.

Case management order or preliminary hearing

Following the ‘sift’ stage the judge will either issue a case management order, setting out a timetable for preparation for the final hearing and/or order that a preliminary hearing take place.

Case management order

The case management order will set out the preparation needed and a timetable for completion and it will typically include the following:

  • Preparation by the Claimant of a Schedule of Loss setting out the amount being claimed.
  • Exchange with the Claimant a list of evidence which is important to the case or which you intend to rely upon.
  • Disclosure of documents to the Claimant from your list and requesting documents from the Claimant’s list.
  • Preparation of a bundle of evidence for the final hearing.
  • Preparation and exchange of witness statements.

You may also have to prepare a chronology of events, a ‘cast list’ of people involved and if you are represented your representative may have to prepare a list of issue and/or a skeleton argument.

Preliminary hearing

The judge may decide that a preliminary hearing is necessary and this can take place in person at the Employment Tribunal or by telephone. Usually they will last for about 1 hour, and during the hearing the Judge can:

1.            Clarify the issues the tribunal will need to determine at the final hearing.

2.            Determine the steps the parties will need to take to prepare the claim for the final hearing.

3.            Issue case management orders requiring steps to be undertaken.

4.            Explore the possibility of settlement or alternative dispute resolution between the parties.

In some cases the preliminary hearing can also be converted to a final hearing to determine the claims.

For full details about preliminary hearings please send an email to alison@alisoncolley.co.uk with the word ‘preliminary hearing’ in the title line.

How to prepare to defend?

When you receive the claim form it is easy to become caught up in being upset at the claim and trying to defend it.  There are however a number of steps that you can take from the outset of receipt that will assist your defence in the long run.

1)      Gather your evidence

As time passes it can be harder to locate relevant evidence and the time scale from receipt of a claim to preparation of documents can be several months’, therefore it is advisable to gather all of the evidence together immediately and ensure that you have it to hand when preparing your response.

2)      Interview relevant witnesses

Time can also effect a person’s recollection of events, which means that the sooner that you can interview someone about the allegations and their version the better. Put this in writing and ask them to sign. Even better would be to go one step further and prepare draft witness statements which can be reviewed and amended once all of the evidence has been gathered.

3)      Get advice

Even if you are happy to run the case yourself and defend it, it is easy to become entrenched in your position. Obtaining advice at an early stage will assist your preparation and may save you time and money in the long run.

4)      Consider settlement

After the introduction of early conciliation you may have already considered this with the ACAS officer. Now that the employee has actually followed through with their threat to pursue a claim you may wish to consider making a ‘commercial’ offer to end the case without further costs and management time on your part.

I hope that the information provided will assist you in defending a claim in the Employment Tribunal.

Please remember however that the information provided is a summary of the law as it stands at the time of writing (April 2014) and as employment law changes fairly rapidly you should check the up to date position. The advice contained on this website is also not a substitute for obtaining advice that is specific to your circumstances, this is for information only and should not be relied upon.

I would be happy to provide you with tailored, affordable HR and legal advice. Please do not hesitate to contact me at alison@alisoncolley.co.uk

Related Articles

Redundancy appeals and unfair dismissal

With the end of furlough approaching, many businesses are having to think (if they haven’t already) about their plans going forward. Redundancies are one of the options that employers are having to consider, and we have had a number of enquiries from businesses across the UK who are exploring this.

Read More →

Update on mandatory Covid vaccinations in care homes

Those working in care homes will need to be double vaccinated otherwise employees face being dismissed unless they are exempt for medical reasons. The justification behind the proposals were that it protected care home residents from serious illness or death related to Covid-19 infections.

Read More →

Employee wins £180,000 in compensation for refusal of flexible working request

A female employee recently won a tribunal claim against her employer because they refused to let her reduce her days of work or leave work early to pick up her child from nursery. The huge pay out was awarded after the Employment Tribunal held that the employer had indirectly discriminated…

Read More →

What are you going to do when furlough ends?

Furlough ends soon. The end of the scheme means that if you have any staff who are currently on furlough or flexibly furloughed you will need to make a decision about what will happen to them from the 1st October 2021 as the top up of pay for periods of furlough will no longer be available.

Read More →

Compulsory covid vaccinations for those working in care homes

The government has recently announced that covid vaccinations will become compulsory for those working in and those attending care homes from 11 November 2021. Changes to the law will mean that those working in care homes that are regulated by the Quality Care Commission must be double-vaccinated.

Read More →

Frequently Asked Questions About Constructive Unfair Dismissal

We have recently received a lot of enquiries from employees or former employees, who consider they have been treated so poorly by their employer/former employer that they may be able to claim constructive dismissal. However, many people are unsure about what constructive unfair dismissal is …

Read More →

Table of Contents

Share This Content
Share on facebook
Facebook
Share on twitter
Twitter
Share on linkedin
LinkedIn
Share on email
Email