Responding to employment tribunal claims
Knowing what to do when an employment tribunal claim is made against you is essential to save your business time and money.
You can be taken to an employment tribunal by an employee or by someone else, such as job applicants or trade unions. The most common causes of an employment tribunal claim against employers include issues relating to pay, discrimination, and dismissals.
In most cases, an employee will have three months minus one day from the date the problem at work occurred to make a claim. Once notified by the employment tribunal you will have 28 days to respond to the claim.
The employee should first inform the Advisory, Conciliation, and Arbitration Service (Acas). Acas will contact you (if the employee gives permission) and attempt to solve the problem without going to a tribunal.
If both parties are willing to participate, the conciliation process takes around four weeks. This can be extended by a further fortnight if you and the employee agree. During this time, the employee’s three month deadline to submit a claim is suspended.
If conciliation ends without an agreement, Acas will issue an early conciliation certificate. The employee will then have one calendar month from the date of the certificate to bring the claim – although you should be aware that there are exceptions to this rule.
It is important that you follow the Acas code. Any award given at the employment tribunal can be increased or decreased by up to 25% if either party is found to have unreasonably failed to follow the code.
When the employee makes their claim, the tribunal will send you a letter known as the ‘response pack’. You must respond to the claim within 28 days using the ET3 response form. Failure to comply could mean that the case will succeed automatically.
At this point, you may wish to consider settlement agreement options. The agreement is legally binding and it is a way to pay compensation and settle outside of the tribunal.
Alternatively, it is time to prepare for the hearing. It is essential to gather evidence and start taking witness statements. You can ask the employee for documents that will help you with your case, and they can request the same from you. Typically, the tribunal will set a schedule for exchanging documents.
You will have at least 14 days’ notice for the hearing. In some cases, you may attend an initial hearing in which the judge will decided on a date for the full case to be heard.
You can bring witnesses to share relevant evidence. If a witness doesn’t want to attend, you can request that the tribunal make an order for them to come. You must apply in writing giving specific details as to why their attendance is necessary. It is important to remember that you will most likely be required to pay for their expenses incurred in attending the hearing.
At the full hearing, the employee will present their case to the tribunal and you will present yours. There will be opportunities for both parties to ask questions, and you may be asked questions directly by the judge. The length of the hearings can range from a day to over a week depending on the issues in contention.
You will receive the decision verbally on the day of the hearing and in the post in writing a few weeks later. If you win the case, you will not have to pay compensation and, in some circumstances, you may be awarded costs by the tribunal. If you lose, you may be ordered to pay compensation.
We would highly recommend seeking legal representation at the earliest opportunity if an employment tribunal claim is made against you.
There are plenty of things that can go wrong and it is essential that you have an experienced employment solicitor to hand with the best strategy in place to succeed.
