What to do when you receive an employment tribunal claim

From 29 July, 2013, most employees wishing to pursue an employment tribunal claim against their employer have had to pay a fee to do so.

Almost all employers will have welcomed this change and the results of it are becoming clearer. The number of employment tribunal claims has dropped considerably – from 50,000 in the first quarter of 2013, to just more than 17,000 in the fourth quarter of 2015.

While that is a large drop, those cases that are brought may well be more troublesome.

So, if your practice receives an employment tribunal claim – an ET1 form – what steps should you take and what are the key action points to bear in mind?

Diarise the deadline to respond to the claim

The priority is to check the initial action required by you. Employers have 28 days from receipt of the ET1 to respond to the claim by filing form ET3 with the appropriate employment tribunal. The importance of meeting this deadline cannot be overly stated. If you do not comply, the employment tribunal may enter a default judgment against you. The impact of a default judgment is that the employer cannot play a part in the claim or defend itself; so this course is best avoided if you want to fight the case.

The deadline will always be clearly set out within the employment tribunal’s correspondence notifying you of the employee’s claim. Make a note of this. It may be possible to seek an extension to this deadline – for example, because a key individual involved in the case is out of the practice on annual leave. To request an extension, you should write to the employment tribunal (copying in the claimant), explaining why an extension is necessary. Extensions will only be granted by the employment tribunal where good grounds exist for doing so. Even where an extension is requested, try to make sure the ET3 form is ready to go before the 28-day deadline to err on the side of caution.

Check the time limits and pre-claim conciliation

Speaking of deadlines, practices should always check the employee has submitted his or her case within the allotted time. The general rule is an employee has three months from the termination of his or her employment to contact ACAS to initiate
pre-claim conciliation regarding a potential unfair dismissal claim. If the worker is alleging discrimination, he or she has three months from the date of the alleged discriminatory act, or the last event in a series of discriminatory acts, about which he or she is complaining to contact ACAS regarding his or her complaint.

For wages claims, a worker will have three months, less one day, from the date the wages were due to be paid to contact ACAS. The employment tribunal will usually check these deadlines have been complied with, but it is always useful to check. If the employee or worker has failed to get his or her claim in before the relevant deadline, the employment tribunal will have no jurisdiction to hear the claim. The employee or worker will also need to confirm he or she has complied with pre-claim conciliation by setting out details of his or her ACAS certificate number on the ET1. Failure to comply with pre-claim conciliation and submitting the claim, even within the relevant time period following this process, may result in the employment tribunal rejecting the claim.

Check whether the claimant can bring his or her claim

Some legal protections only apply to employees – for example, claims of unfair dismissal and for a statutory redundancy payment. If a claimant is arguing unfair dismissal, and he or she was engaged as a locum or a worker, then the employer should raise this in the ET3. Generally, an employee can only pursue an unfair dismissal complaint against his or her employer once he or she has at least two years’ service with that employer, although there are important exceptions to this rule.

Has the claimant pursued the right employer? It may be you have been incorrectly identified as the employer liable for the claimant’s claim – for example, as a result of a transfer of undertakings. Has the claimant pursued claims in the correct jurisdiction? If the claimant was engaged outside of England and Wales, and has no connection with the UK, it may be the employment tribunals based in England and Wales do not have jurisdiction to hear these claims.

Usually, the claims will be clearly set out on the ET1 form, but there may be further allegations included within any additional information attached to the ET1. Your defence should respond to each specific complaint being made.

Collect and preserve evidence

Should the case proceed to a hearing, witness evidence will be required from those involved in the events and issues giving rise to the claim. To be ready for this, and to accurately draft the defence, take initial statements from relevant employees. This is particularly useful when the events leading to the claim will be fresh and clearer in everyone’s mind. You should also begin to collate any relevant documents and put together your version of events and chronology. The disclosure process will require all relevant evidence (whether or not it is helpful to your case) to be sent to the claimant. For this reason, practice managers and employees involved should be told to preserve documents.

Sometimes an ET1 form – and the claims set out within – will be unclear. The new employment tribunal sift process should give judges better opportunities to reject these claims before they reach you, but it remains to be seen how this will work in practice. If the ET1 is vague, part incomplete or contradictory then an employer could consider serving the employee with a request for further and better particulars of the claim. This will allow for specific questions to be put to the employee regarding the unclear parts of his or her claim. Employers should always think carefully (and take advice) before issuing a request for further and better particulars. While this process can sometimes represent a useful method of finding more out about an employee’s claim, it can also give the employee a second opportunity to get his or her claim into shape.

Consider settlement

Settlement is always an option to consider – particularly if it appears the employee has a good chance of a successful claim. Other factors to take into account when considering settlement will be the possibility of any adverse publicity, damage to reputation and the time and legal fees required to defend the claim. While making a payment to the employee may be the last thing you want to do, an early settlement could make good commercial sense.

You can also consider contacting ACAS and ask the conciliator assigned to the case to assist you to broker any deal you may wish to make. This can be particularly helpful in circumstances where the employee is not legally represented. If settlement negotiations begin before the ET3 form is filed, make sure an eye is kept on the upcoming deadline – if settlement negotiations break down or are not concluded before the deadline, you must ensure you file the ET3 to protect your position.

Take legal advice at an early stage

Taking legal advice at an early stage will ensure you understand fully the claim being made against you, the required steps needed to comply with the employment tribunal’s rules of procedure, and to help form a response and strategy to defend the claim. Inaccurately completing the ET3 response form – or failing to address something – is likely to cause problems later in the process and could have expensive consequences at the employment tribunal hearing.