‘At some point, many businesses will receive a tribunal claim against them from an employee, former employee or even a job applicant,’ says Elizabeth Bartle, a solicitor in the employment team with Ingram Winter Green in London. ‘Although a tribunal claim can seem daunting, knowing what to expect and acting quickly will help you defend the claim as effectively as possible.’
Elizabeth runs through what happens at the start of the process and sets out what to do to help prepare the defence.
Acas early conciliation
An employment tribunal claim usually does not come out of the blue. In most cases, the employee must contact Acas first to trigger early conciliation. Early conciliation lasts up to six weeks, during which time Acas mediate between you and the individual to try to settle the potential claim against your business. If the conciliation is unsuccessful, the individual is issued with a certificate. Without this, they cannot bring a claim. The door to settlement does not close after that; you can still negotiate through Acas or directly with the individual or their representative.
Notification of the claim
If the individual decides to bring a claim, they do not have to notify you themselves. In most cases, the Claimant may only send their claim to the tribunal, who will notify you once the claim has been issued. The tribunal will send you the claim form (called an ET1), often with an attachment setting out the claim in more detail (the particulars of claim). You will also receive a letter informing you of the date by which you have to submit a response and the form you need to fill in and return to the tribunal (called an ET3).
Although a tribunal claim can seem daunting, knowing what to expect and acting quickly will help you defend the claim as effectively as possible.
Deadlines, deadlines, deadlines
It is crucial to check the deadline on the letter for sending your ET3 to the tribunal. This will be 28 calendar days from the date the ET1 was sent to you.
What happens if the response is late?
Tribunals are strict about the deadline. Miss it and you risk the tribunal deciding that you cannot defend the Claim. . It is, therefore, vital that you do not miss the deadline for filing the ET3 and your response.
Can I ask for extra time?
You can ask but extensions are not frequently granted. It may also take the tribunal a long time to deal with the application for an extension. In the meantime the clock is ticking on the 28-day time limit. Therefore, it is advisable to start preparing the response even if you have applied for an extension.
In deciding whether to grant an extension of time, the tribunal will consider the fairness of the request and why you could not meet the deadline. Therefore, your application will have to be strongly argued with a detailed explanation as to why the extension is required. If you do wish to make an application for an extension, the application should be made as soon as possible and we can help you with that process
Preparing to defend the claim
To defend your business as robustly as possible, we strongly recommend getting in touch as soon as you are aware that a claim may be brought. That may be before you receive formal notification from the tribunal as the Claimant may have raised their claim with you informally and/or you have been contacted by case. In any event, you should let us know as soon as you have received the claim from the Tribunal.
Getting the response right
The ET3 form and grounds of resistance need to be completed carefully. These set out your side of the story and should address all the allegations in the claim. This is the backbone to your case, and you will be held to it by the tribunal. We can draft this to best protect your business. It is important that the detailed response to the claim is consistent with the paperwork that the tribunal examines later at the hearing. Collect and send us the relevant documents and emails so that we can ensure the response tallies with these.
Can I delete unhelpful emails and documents?
Absolutely not. Further down the line in proceedings, the tribunal will require the parties to disclose all relevant documents to each other. This includes documents that are not favourable to your case. When tribunals refer to documents, this has a wide meaning and includes emails, notes from meetings, audio recording, texts, social media posts. These should be saved, regardless of whether they are helpful or not. In fact, as soon as you are aware of a potential claim, you are obliged to conserve all documents and cease routine deletion of material.
Working effectively with your solicitor
Here are a few pointers to working effectively together, which can help keep costs down:
- get in touch as early as possible – we will need input from your business into preparing the response and it can take time to get it right;
- select one manager as the main point of contact to liaise with the solicitor, and take into account that dealing with the claim will increase the manager’s workload;
- check the key information in the claim form, for example the claimant’s start and leaving dates and salary details; and
- have the key documents ready to send to your solicitor, for example in a conduct dismissal case this will include the investigation report, dismissal letter and any documents relating to the appeal.
How we can help
Using our extensive experience of defending employment tribunal claims, we will defend the claim in an effective and pragmatic way. For further information, please contact Elizabeth Bartle in the employment team on 020 7845 7443 or email elizabethbartle@iwg.co.uk.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.