Defending Employment Tribunal claims

As an employer, you may sometimes be faced with Employment Tribunal claims from your employees or former employees. This can range from low value claims for deductions from wages, to complex cases and proceedings involving unfair dismissal and discrimination.

If an Employment Tribunal claim is brought against your business or organisation, it’s important to deal with it quickly and proactively as there are strict time limits with which you must comply or risk a default Employment Tribunal Judgment being issued against you. Defending an employment tribunal claim from a current or former employee can be stressful and time-consuming, and our award-winning employment solicitors can advise you every step of the way as the claim proceeds. We have a proven track record of helping employers successfully defend claims.

What should you do if you receive an Employment Tribunal claim?

If a claim is made against you, this will normally be sent to you by post by the Employment Tribunal. The Employment Tribunal will send you a copy of the claim form (or “ET1”) and tell you when you need to submit your defence (or “ET3”) to that claim form. The defence must usually be lodged within 28 days of the claim being sent to you, unless you have a good reason for applying for extra time, so you must act quickly.

When preparing your defence, it’s important to get specialist legal advice from an employment law solicitor at an early stage. Your solicitor will be able to help you assess the following considerations:

• Was the claim brought in time? For most types of Employment Tribunal litigation, the deadline for bringing a claim is 3 months after the dismissal or the events complained of (plus extra time if they spent some time going through the ACAS early conciliation process first). However, if a Claimant is out of time, they can still potentially bring a claim in the civil courts against their current or former employer.
• Initial issues – does the employee have the right to bring the type of claim they’ve brought? For example, if they’re claiming unfair dismissal, did they have 2 years’ service with you before they were dismissed; or if they’re claiming disability discrimination, do they have a disability within the meaning of the Equality Act?
• Strength of claims – what should your response be to the claims? For example, did you have a fair reason for dismissing the employee or treating them the way you did? Do you have evidence that shows their allegations are untrue? Can you establish a legal defence to a claim of discrimination or whistleblowing?
• Value of claims – if the claims ended up being successful, what would they be worth and how could you reduce the amount of compensation you might have to pay to the employee?

When should you settle a claim rather than defend it?

Sometimes it will be sensible to settle a case in order to save management time, legal costs and the reputational damage that might result from having to defend a claim brought against you.

If the employee went through the ACAS (conciliation and arbitration service) “early conciliation process” with you before bringing the claim, you might have had the chance to consider settlement at that stage. However, negotiating settlement can happen at any point during proceedings. Your solicitor can discuss with you how best to tactically approach settlement, including the appropriate timing and level of any offers. There will be times when defending employment tribunal claims will be the best option, and others when achieving settlement of a dispute is the best outcome for you.

How can you prepare your case for an Employment Tribunal hearing?

An an early stage of the case, the Employment Tribunal will send the parties a list of “directions”. These are basically steps that both sides need to follow to prepare for a hearing of the claim. Alternatively, the Employment Tribunal might arrange a “Case Management”.

Preliminary Hearing, which is a mini-hearing (often held by telephone or video link) to discuss the case and what steps need to be taken next before a final hearing.

The most common types of directions both sides will usually be told to follow are:

• Disclosing all relevant documents in your control that are relevant to the claims and your response (the employee will also be asked to do this);
• Agreeing the contents of a bundle which will contain all the documents to be considered at the final hearing; and
• Preparing written witness statements for all those who you want to give evidence at the hearing.

We would suggest that you to speak to an employment solicitor for help with how best to comply with these types of directions.

Who should you call as a witness?

It’s important to think carefully about who you want to call to give evidence as a witness. Sometimes, you might want to call a witness who no longer works for your organisation and might be reluctant to get involved. You should seek legal input about the process involved in applying for a “witness order” to force anybody who is reluctant to be a witness to give evidence, and about whether this is the right step for you to take. When defending claims, they key is to think about who has relevant evidence to give about the claim, and who will provide evidence in an effective and compelling way at the hearing.

What will happen before the Tribunal hearing?

Both sides will normally be given hearing dates a few months beforehand by the Tribunal, so you’ll need to make sure that all of your witnesses are able to attend. Hearings may be held either in person or virtually, or a combination of the two. Depending on the type of claim, the hearing will either be conducted by one single judge or a judge accompanied by two Tribunal panel members.

Are the parties always represented at hearings?

Most parties are represented at hearings by an employment law barrister (often referred to as counsel), and at Darwin Gray we have very close ties with the best specialist barristers and work with them to make sure they’re fully equipped to defend your employment tribunal case at a hearing. Sometimes employees will represent themselves at hearings, in which case the judge may take some time to make sure that they understand the issues and allow them extra time to present their case.

What happens at a Tribunal hearing?

At the hearing, both sides’ witnesses will give verbal evidence about the case and be cross-examined by the other party (or their legal representatives). It’s important that your witnesses prepare for this and are very familiar with the contents of their witness statements and the documents in the bundle. Witness statements are very important documents so drafting statements is one of the key stages of Employment Tribunal litigation.

The length of the hearing will depend on the type of claim that’s been brought by the Claimant. In the most straightforward cases, the hearing might last for no more than a day. However, in more complicated cases, for example where a Claimant has brought a claim involving discrimination or whistleblowing, you might be looking at several weeks.

When do you get an outcome and what happens next?

In some cases, the judge will hand out the Tribunal’s judgment verbally at the end of the hearing. However, in others, the judge may decide to send their decision to the parties at a later date. If the employee has won their claim, the Tribunal may need to arrange a further hearing to decide how much compensation should be awarded to them.

How do you appeal a Tribunal decision?

If you’d like to appeal against the Tribunal’s decision, you can appeal to the Employment Appeals Tribunal. However, you should seek legal input on whether to appeal and on how to do so. Once you are in a position to appeal you must take note of the date by which you need to lodge your appeal.

Can you recover your legal costs if you win?

It’s rare to get your costs back if you win. In most cases, each party will pay their own legal costs regardless of who has won. That said, the Tribunal can award costs against a party if it decides that they’ve acted unreasonably during the case. This makes it important to get legal input on how best to conduct the Tribunal process, to avoid the risk of you ending up paying the other party’s costs at a later date.

Can you get insurance to cover the cost of Tribunal claims?

Yes, you may be able to fund your legal costs if you have an existing Legal Expenses Insurance (LEI) policy in place. But this policy will need to have been put in place before the Tribunal claim is brought against you.

Darwin Gray offers an excellent EPL policy to our employer clients in conjunction with a company called ALS Albion Ltd. For information on the Darwin Gray Employment Law Protection Scheme, click here or call us (02920 829 100) and we can advise you on your options.