Successfully Defending an Employment Tribunal Claim

Employment tribunal claims can have significant consequences for businesses, both financially and reputationally. It is crucial for employers to have the proper procedures and strategies in place to effectively defend against such claims. In this comprehensive guide, we will provide you with valuable tips and advice on successfully navigating the employment tribunal process and maximizing your chances of a favourable outcome.

Understanding the Employment Tribunal Claim Process

When an employee brings a claim against your business, it is essential to be aware of the key steps in the employment tribunal claim process. Typically, you will receive an “ET1 form” from the Employment Tribunal, which outlines the type of claim and the employee’s allegations. Within 28 days of receiving the ET1 form, you must submit your defence, known as an “ET3 form,” to the Employment Tribunal. Failing to meet this deadline can result in severe consequences, such as a judgment being entered against you or being excluded from the proceedings.

Initial Steps in Defending an Employment Tribunal Claim

To position yourself strongly in defending an employment tribunal claim, it is recommended to take the following initial steps:

1. Check your insurance policy: Determine if your business has an employer’s legal expenses insurance policy that covers the costs of defending an employment tribunal claim. If so, your insurer may cover all your legal fees.
2. Assess the claim’s timeliness: Consider whether the employee has filed the claim within the required time limit. The limitation date may have been extended due to ACAS early conciliation. If the claim is out of time, you may have grounds to have it struck out.
3. Seek legal advice: It is crucial to consult with an experienced employment law solicitor early on. They can assist in drafting your defense and ensure you have a solid legal strategy.
4. Gather relevant documentation: Preserve any documents that could be pertinent to the employment tribunal claim, such as the employee’s contract, HR policies, emails, and other communication related to the dispute.
5. Identify potential witnesses: Determine who the key witnesses are and gather their statements and evidence. It is advisable to interview them early in the process while their recollections are fresh.
6. Consider settlement: While defending a claim may be your initial instinct, it is essential to evaluate whether settling the claim could be a more cost-effective option for your business. Settlements can sometimes be the best resolution, and an employment law solicitor can guide you on when and how to pursue this route.

Drafting an Effective ET3 Form

The ET3 form is a critical document in the employment tribunal process. It serves as your response to the employee’s claims and should be meticulously prepared. Here are key points to consider when drafting your ET3 form:

• Address each allegation made in the employee’s claim.
• Clearly indicate which parts of the claim you agree with, which you deny (with explanations), and which you cannot comment on.
• Structure your response in the same order as the employee’s claim to facilitate understanding and coherence.
• Use clear and professional language, avoiding jargon or unnecessary legal terms.
• Ensure that the information provided aligns with the evidence and documents that will be presented during the proceedings.

The Employment Tribunal Process: Key Stages

Throughout the employment tribunal process, several key stages require careful attention and preparation:

Sift Stage

After submitting your ET3 form, the employment judge will review it. If the judge determines that you have no reasonable prospect of successfully defending the claim, it may be struck out, resulting in a default judgment against you. Therefore, it is crucial to present a strong defence in your ET3 form.

Case Management

In some cases, a Case Management hearing may be scheduled. This hearing allows the judge to address administrative matters, set a trial date, and establish a timetable for exchanging evidence and witness statements. If necessary, it can also address jurisdictional or preliminary issues.

Disclosure and Witness Statements

Both parties have an obligation to disclose all relevant documents to the other side and the tribunal. This process requires careful consideration, as you must provide not only evidence that supports your case but also evidence that may benefit the employee’s case. Prepare witness statements that align with the evidence and address the issues at hand.

Preparing for the Final Hearing

As the final hearing approaches, several crucial steps must be taken, including:

• Reviewing witness statements and ensuring they reference the appropriate evidence.
• Instructing legal representation, such as Counsel, if necessary.
• Preparing a skeleton argument that outlines your legal arguments and positions.
• Compiling a comprehensive hearing bundle that contains all relevant documents.
• Preparing your witnesses for cross-examination and the overall courtroom experience.

Seeking Expert Employment Law Advice

Navigating the employment tribunal process can be complex and challenging. It is highly recommended to seek expert employment law advice from experienced solicitors who specialize in defending employment tribunal claims. Their guidance and support can significantly increase your chances of a successful defence.

If you are facing an employment tribunal claim, contact our team of employment law barristers at ThomasMore Chambers (please see https://www.thomasmore.co.uk/Expertise/employment). We have the knowledge and experience to provide you with comprehensive advice and representation throughout the entire process.