What you need to know about defending an Employment Tribunal claim.

What happens when an employee claims against you in the Tribunal?

If you are an employer and have had a claim issued against you in the Employment Tribunal, it can cause several issues, the most likely of which is going to be the time, cost and potential reputational damage caused to your business.

My top tip is always to seek assistance from a specialist at the early stages of a dispute, as it is possible matters can be resolved, without a claim being issued.

However, not all disputes can be resolved, as such, I recommend that employers have clear and up to date procedures in place, as it is likely a dispute will arise with the raising of a grievance or commencement of disciplinary or capability procedures.

1. Whilst the Employee is still Employed

An employer will normally be aware of a potential issue with an employee, whilst the employee is still employed. It is crucial that your managers and senior staff understand your business’s policies and procedures, as this will ensure the relevant procedure, for dealing with the dispute, is followed correctly.

The reason for this is that, often a procedural failure will make the employee feel their issue is not being taken seriously and/or they are being treated unfairly, which will only fuel the dispute.

Further, ensure that accurate notes of any hearings are taken and given to the employee following the hearing for the employee to review and (hopefully) approve. One way to avoid dispute over what was said at the hearing is to audio record the hearing. This requires consent from all parties who are present but can really help later down the line if a dispute arises.  

2. Termination of Employment

If an employee resigns, their resignation letter will usually provide you with an indication of whether they intend to pursue matters further. Although, if the resignation letter does not allude to a claim, this does not prevent an employee from pursuing a claim.

If an employee is dismissed, then normally they will appeal the decision and will have raised concerns throughout the process.

3. Acas Early Conciliation

Other than in limited circumstances, an employee will have to lodge their claim with Acas. In this situation, an Acas early conciliator will contact you and attempt to resolve matters. I would advise that you engage with this process, as even if a resolution is not reached, it demonstrates your willingness to try to resolve matters.

Bear in mind that an employee’s limitation deadline for filing a claim in the Employment Tribunal will be paused, whilst this process is undertaken.

Whilst an employee is required to lodge their claim with Acas, they are not required to go through with the early conciliation process. This means they can lodge their claim with the Employment Tribunal without Acas ever contacting you.

4. Notification of the Claim

Once a claim has been lodged and accepted by the Employment Tribunal, they will send you a copy of the claim and confirm that you have 28 days to file a defence. I advise that you seek legal advice at this point if you have not previously.

5. Defence

The defence needs to be submitted within 28 days of receiving the notification of claim, using form ET3.

If the claim issued against you is unclear you can seek clarification from the employee and/or request that a preliminary hearing is listed, to determine the issues. This request can be made within your defence.

If a preliminary hearing is listed and the employee is asked to clarify their claim, then you will be given the ability to amend your defence accordingly to any new allegations or facts that come out.

6. Preliminary Hearing

Some types of claim require a preliminary hearing, for instance discrimination and whistleblowing claims. This is usually, a short hearing, which allows the Judge to get to grips with the claim.

A hearing can also be requested or ordered by the Employment Tribunal in a variety of situations.

Following this a Case Management Order will normally be made by the Employment Judge.

7. Case Management Order

Once the Employment Tribunal has considered the claim form and defence, a Case Management Order will be issued. This can be issued earlier in some claims or made during a preliminary hearing, (as explained above).

The Case Management Order sets of the timetable for the claim up to final hearing, and is therefore, extremely important. It is also important that you adhere to the timetable set out in the Order, otherwise you can be fined or have your defence struck out by the Employment Tribunal.

8. Final Hearing

The final stage is the hearing, the length of which will depend on the complexity of the claim and the number of witnesses required.

9. Summary

A claim usually takes between 9 – 12 months to conclude, however, can take longer if a long hearing is required or if there are delays in any of the stages.

We can assist with any part of defending a claim and can normally provide a cost estimate or fixed fee arrangement for the work required to defend the whole of a claim, or specific parts.

Further, we are able to assist with a dispute which arises whilst the employee is still employed and would recommend seeking advice as soon as an issue arises.

If you need any assistance, please do not hesitate to contact us on our Head Office number 01983 897003.