If a present or former employee is bringing action against you in the Employment Tribunal, you will need clear and sensible advice as to how to respond.
At Advantage Employment Law, we will advise you on a suitable strategy to deal with the claim. We will discuss the relevant law with you and, in some cases, the possibility of a settlement.
We set out below some guidance for handling Employment Tribunal claims:-
1. Responding to a Claim Form
When responding to the claim, you must use the prescribed form ET3. We will complete this form on your behalf after taking full details from you.
Although there are a large number of questions on the ET3 Form, only 4 of them are compulsory. These are:-
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The Respondent’s full name;
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The Respondent’s address;
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Whether or not the Respondent wishes to resist the claim in whole or in part; and
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The grounds on which the Respondent wishes to resist the claim (if the claim is to be resisted).
Time Limits for Responding
You only have 28 days to respond to a Claim Form, so it's important that you contact us as soon as possible. The 28 day period begins on the date that the Claim Form was sent and not the date that it was received.
For the purpose of calculating the time limit, that date itself is not included. For example, the Claim Form is sent on 1st October 2007, the last date for presentation of the response is 29th October 2007. The response must be filed by midnight on that date.
Applying for an extension of time for submitting a Response
If you think that you will not be able to complete the response within the time limit, you may be entitled to an extension. We can apply for an extension on your behalf. However, the application must be madeybefore the expiry of the 28 days.
If the response is submitted out of time, you will not be allowed to take any further part in the proceedings. In other words, the Claimant will be awarded judgment against you without the need to go to a hearing.
In practice, it can take several weeks for an Employment Tribunal to deal with an application for an extension of time. By the time that it has been dealt with, the 28 day period has expired.
Accordingly, it is often better to put in an ET3 Form that only contains the minimum information. You can then apply at a later date to amend it when further information is available.
After the ET3 Response Form has been submitted, the Employment Tribunal will automatically send out Case Management Directions. The standard directions are:-
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Both the Claimant and the Respondent shall disclose to each other by [date] all documents in their possession and control that are relevant to any issue in the case including all documents which relate to the remedy claimed. This can be done by sending a list or sending photocopies.
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Any person who is to give evidence before the Tribunal (including the Claimant and the Respondent) shall prepare a written statement containing all of the evidence he or she intends to give. Theses statements should be typed or legibly written and should be exchanged between the parties by [date]. Six copies of each statement should be brought to the hearing.
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The Parties shall no later than [date] prepare a joint bundle of documents containing all of the documents that they each wish to rely upon. Each page of the bundle should be consecutively numbered and there should be an itemised index. Six copies should be brought to the hearing.
We will ensure that all of these directions are followed on time, so that your case is not jeopardised.
Disclosure of documents
Both you and the Claimant are required to disclose all relevant documents whether they help or hinder your case. These include:-
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Employment contracts;
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Staff Handbook or policies;
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Pay slips;
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All relevant correspondence;
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Minutes of meetings;
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Any documents relating to disciplinary action;
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Any other documents that are relevant.
Under the Date Protection Act, the Claimant is entitled to a copy of the personnel file if it is requested.
You are also required to preserve electronic data that may be relevant, such as emails, electronic versions of printed documents, data bases and text messages. The duty to disclose documents in ongoing. Therefore if you come across any documents in the course of the proceedings that may be relevant to the case, these should be disclosed immediately.
The Claimant is obliged to disclose all details of efforts to find work. These include job application forms, letters applying for jobs, copies of job adverts, a log of all telephone applications and a printout of any jobs applied for online.
Witness statements
You will need to decide at an early stage who you need as witnesses. We will be happy to discuss this with you and prepare the statements in the required form.
The usual witnesses acting for a Respondent would include the person who conducted any disciplinary procedure and anyone conducting an appeal.
Hearing Bundle
We will prepare a bundle of documents ready for the hearing.
A Hearing Bundle is a single bundle of documents. It includes the following:-
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ET1 Claim Form;
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ET3 Response Form;
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documents disclosed by both sides, in chronological order;
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the Claimant’s schedule of losses
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the Respondent’s counter-schedule.
We will try to agree the content of the Hearing Bundle with the Claimant.
At the hearing, we will ensure that there are enough Hearing Bundles for each of the three members of the Tribunal, the witness box and as many as you need for yourself.
Extension of time for complying with Case Management Directions
Although it is preferable to comply with all Case Management Direction on time, in practice, there is a certain amount of leeway. If you are likely to be late in complying with a direction, we will seek to agree a later date with the Claimant.
Even if the Claimant does not agree, you are unlikely to be penalised if you are only a few days late, provided that it has not prejudiced the Claimant.
3. Case Management Discussions
The purpose of a Case Management Discussion (“CMD”) is to promote the efficient handling of a case by the Tribunal.
At a CMD, the Chairman can make orders that will assist in ensuring that the case is fully prepared for trial.
A CMD usually lasts about one hour, although there can be a lot of waiting around at the Employment Tribunal.
4 Pre-Hearing Review
The purpose of a Pre-Hearing Review is to identify very weak cases or defences at an early stage.
If the Claim against you has little prospect of success, the Tribunal can order that the Claimant pay a deposit of up to £500 as a condition of being permitted to proceed with it.
Alternatively, in some circumstances, the claim can be struck out altogether. This can be done on the following grounds:-
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That all or part of the claim is scandalous, vexatious or has no reasonable prospects of success;
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That the manner in which the proceedings have been conducted has been scandalous, unreasonable or vexatious;
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The claim has not been actively pursued;
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One of the parties has failed to comply with an order or practice direction;
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The Chairman considers that it is no longer possible to have a fair hearing.
The types of matters that are considered at a Pre-Hearing Review commonly include the following:-
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Whether the Claimant was an employee or an independent contractor;
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Whether the claim has been brought in time;
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Whether there has in fact been a dismissal;
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Whether a Claimant in an ordinary unfair dismissal case had one years’ continuous service;
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Whether the Claimant raised a written grievance if he was required to do so.
An application for a Pre-Hearing Review can be a useful weapon if it is clear that the Claimant is simply trying it on, particularly if it could lead to an order that the Claimant pay a deposit of £500.
5. Settlement Negotiations
Unless there are particular commercial policy reasons why a settlement should not be explored, settlement negotiations should take place at an early stage. The advantages of a settlement include the following:-
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A substantial saving in working hours will be made;
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Potential legal costs will be minimised;
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Disruptions to business caused by attendance of witnesses will be prevented;
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The risk of adverse publicity will be avoided.
We will be happy to advise you on a suitable level of settlement.
The Schedule of Losses
A Claimant will be required to disclose a schedule setting out all the losses claimed. This should include the following:-
The Basic Award
This is calculated in the same way as a redundancy payment, that is by reference to the Claimant’s age, years of service and average weekly pay. The weekly pay figure is subject to a maximum of £400 per week.
If successful, the Claimant will be entitled to:-
- half a week’s pay for each year of service below the age of 22;
- one week’s pay for each year of service between the ages of 22 and 41;
- One and a half week’s pay for each year of service from the age of 41 onwards.
The Compensatory Award
This award is intended to compensate the Claimant for financial losses relating to the dismissal, both past and future. These losses include:-
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Salary;
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Bonus or commission payments;
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Benefits, such as health care, company car, use of mobile phone or computer etc;
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Pension Rights.
Challenging the Schedule of Losses
Upon receipt of the Claimant’s schedule of losses, you should challenge the figures claimed. The Tribunal can make deductions from the compensation in certain circumstances. For example:-
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If the Claimant is partly to blame for the dismissal, the award can be reduced by up to 100%
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If the Claimant has failed to make proper efforts to find another job, the award can be reduced. The Tribunal will award losses up to the date that it considers the Claimant should have found another job.
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Where the dismissal was unfair because the employer failed to follow a fair procedure, the Tribunal can reduce the compensation awarded to reflect the probability that the Claimant would have been dismissed even if a fair procedure had been followed.
