Top tips on preparing to defend an employment tribunal claim

According to Tribunal Services’ statistics for 2008/2009, claims for unfair dismissal, breach of contract, redundancy pay and failure to inform and consult in redundancy were all up on the previous years’ figures.  In total, 151,000 claims were submitted.  Compensation awards in discrimination cases also increased in 2008/2009 to their highest levels recorded to date.

Based on these figures, it seems that employees are not hesitating to bring claims, whereas, in the past, they may have been more reluctant to sue – possibly because it was easier to find another job.  So, in case you are greeted by an ET1 form quietly sitting on your desk one morning, it pays to be prepared.

• •    Check whether the employee has brought his/her claim on time. The general rule is that an employee has three months from the termination date (or, in discrimination claims, from the date of the discriminatory act or the last event in a series of discriminatory acts about which they are complaining) in which to bring a claim.  There are limited circumstances in which the tribunal will allow the employee an extension of this period.  If you believe the employee is out of time, your response ought to state the employee is out of time and so the tribunal has no jurisdiction to hear the claim.  See ‘Apply for a pre-hearing review’ below.
• •    Make a note of the deadline to respond to the claim.  You have 28 days from receipt of the ET1 to respond to the claim (which needs to be filed with the tribunal on form ET3).  When you receive the ET1 from the tribunal, you should receive written confirmation of the deadline for responding at the same time.  Put the date in your diary so that you do not miss the deadline.
• •    Who is being sued? Firstly, check that the company being sued is not an overseas sister company.  If it is, consider informing the tribunal and the employee that you refuse to accept service.  Otherwise you will be acting in the proceedings on the overseas company’s behalf!  Secondly, the employee’s allegations may not just be against the company.  Check whether the employee is bringing allegations against other staff members within the company, as they will become parties to the claim.  You will have to consider carefully the allegations made against staff individually and (grievance and disciplinary procedures aside) whether it is appropriate that you respond to the claim on their behalf as individuals, or not.
• •    Be clear what claims the employee is bringing.  Usually, the claims (for example: unfair dismissal, sex discrimination, or breach of contract for failure to pay him/her for their notice period) will be indicated clearly on the ET1 form, but there may be further allegations imbedded within any additional information attached to the ET1.
• •    Deal with each and every allegation.  Ensure that your response covers all the matters which the employee has raised.  There are two ways of doing this – either by responding to each point paragraph by paragraph or by putting forward the company’s version of events in its own way.  Either way, make sure that you deny each of the claims being asserted.  You should always seek legal advice where necessary, particularly where the claims are complex.
• •    Start collecting and preserving evidence early.  Start talking to the people involved in the event which led to the complaint being made and take statements from them.  You should begin to collate any relevant documents and put together the company’s version of events.  You may want to consider requesting from the tribunal an extension for submitting the ET3, if you think you will need more time to collect evidence, but don’t bank on getting one!
• •    Request further information.  If the ET1 is vague or contradictory, consider serving on the employee a ‘Request for Further Particulars of the Complaint’. This requires the Claimant to answer specific questions relating to the unclear parts of his/her claim.  This may assist you in deciding on the employee’s prospects of success, and whether they have a legitimate complaint.
• •    Apply for a pre-hearing review.  After you have done all of the above and you consider that the employee’s claim (or part of it) has no reasonable prospect of success or that the tribunal lacks jurisdiction to hear the claim (for example, the claim is out of time or the employee was not employed in the UK or has no employment rights here, then consider applying to the tribunal for a pre-hearing review.  At a pre-hearing review, if the tribunal it finds in your favour, it can strike out all or parts of the employee’s claim.  Given the tight timeframe of the date for the ET3 to be filed, there may not be time to apply in the ET3, so you should do this very shortly after filing the ET3.
• •    Consider early settlement.  Particularly where there is a high risk that the ex-employee would be successful in their claim.  Other factors which may influence settlement include the adverse publicity which the claim could attract, the management time and the legal fees (which you have to cover) involved in defending it.  Consider using ACAS to help broker a deal.  This can be particularly useful if the employee is not legally represented.  Where negotiations have not completed by the time the deadline for filing the ET3 is approaching, the ET3 should be filed anyway, as a precaution (in case negotiations break down).