How To Defend An Employment Tribunal Claim
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Defending an employment tribunal claim
Defending an Employment Tribunal claim can be a lengthy and expensive process. At Neathouse Partners we have many years of experience dealing with all sorts of different claims and can guide you through the entire process, up to and including representing you at the trial.
When you are notified of a potential claim the first thing to do is to consider whether you are going to fight it. You need to consider not only the chances of winning the claim but the wider implications, such as:
- The legal costs that you will incur (which you normally won’t get back, even if you win);
- The amount of time needed to prepare a defence, including management time and time spent interviewing staff/reviewing documents;
- The value of the claim if you lose;
- The risk of adverse publicity, both internally and externally, especially as Tribunal decisions are published online and will often appear in internet search results.
It is often worth considering, settlement at an early stage and before you have invested time and effort in dealing with the case.
Although settlement can often make sense on a commercial and pragmatic level, you need to weigh up how this may appear to your staff – often employers will not want to be seen as a “soft touch” and will want to ensure that former employees do not bring spurious claims in the hope of getting an easy payment.
If, for instance, a manager has dealt with a disciplinary dismissal they may feel that their position has been undermined if you ultimately decide to settle. For this reason it is important to consult them as part of the decision making process and ensure that they understand the wider commercial reasons for settling.
If you decide to fight the claim, you must submit a defence on the prescribed form called an “ET3” form. The Tribunal must receive the ET3 within 28 days of the date it sends the ET1 (the claim form) to the you. The Tribunal will confirm the deadline in writing when it sends the ET1.
If you are unable to submit a response within the 28 day period, you can apply for an extension of time, but there must be good reasons for this.
Resources to help your business
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Drafting an ET3 - Key Points
The ET3 is a key document in the Tribunal process, it needs to set out your response to the allegations made.
Any inconsistencies or errors within the ET3 will harm your credibility and ultimately increase the chance of you losing. It is vital that the ET3 is carefully prepared so that your chances of winning are maximised.
The basic point of the ET3 is to establish:
- What parts of the claim are agreed;
- What parts of the claim are denied (and the reason why);
- What parts of the claim you are unable to comment on (e.g. because you can’t say either way).
The ET3 needs to deal with all of the allegations that are made against you. If you deny a particular allegation you must explain why.
It is common to structure the response in the same order as the ET1 so that you work through each allegation in turn.
The golden rule is to think about how the Judge will interpret the ET3, you need to make it as easy as possible for the Judge to follow. You should avoid jargon and use clear, straightforward, professional language. Respondents often make the mistake of trying to use long words or legal terms that they may not wholly understand.
Include all relevant information and detail, including dates, names and summaries of important conversations. It is vital that these are correct. If a case goes to trial, inconsistencies in key facts will make your case look unreliable and the Judge may then agree with the Claimant’s version of events.
Make sure that any explanations given on the response form correspond to the evidence documents that will ultimately will be disclosed in the proceedings.
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Key Stages In The Employment Tribunal
Once the response has been submitted and accepted, it will be passed to an employment judge who will consider it.
If it appears to the Judge that you have no reasonable prospect of fighting the claim it could be struck out. This means that you will lose by default.
Case Management hearings are not always required. In simple cases, the Tribunal may simply issue a trial date and a timetable leading up to the trial date. The timetable will set out the key dates for when the parties will exchange their evidence and witness statements.
If a Case Management hearing is ordered a Judge will consider what steps will be needed in preparation for the final hearing. This could include the provision of medical evidence if, for instance, a Claimant says that they were disabled when they were sacked and the Respondent does not accept this.
Preparing The Defence: Disclosure, Witness Statements And Document Review
Both parties are under a duty to disclose all documents in their possession or control that are relevant to the issues that are to be decided in the case.
It is important to appreciate that not only do you need to provide evidence that helps your case, you are also required to disclose evidence that could help the other side’s case. A Tribunal is an official legal process and if you decide to lie about a document or conceal it, you could potentially be sent to prison for contempt of court.
The more time that passes, the harder it may be to locate all the relevant evidence and documents. It’s best to try and gather as much information together as soon as possible to make the disclosures as smooth as possible. It is best to do this at the start of the case so that the ET3 is as factually accurate as possible.
In most cases, the parties will prepare witness statements which sets out what evidence will be given at the final hearing. The witness statements must be exchanged simultaneously, before the final hearing. As people’s memories may alter with time, it is best to interview and obtain witness statements in writing as soon as possible. These can always be reviewed and amended at a later date, before the exchange should further information come to light.
Once all of the Claimant’s witness statements have been received, you should check:
- All statements from all expected witness have been provided;
- The statements deal with all disputed facts and issues;
- If any new allegations or evidence have been raised in the statements.
Once you are in possession of all the key evidence and statements you should be able to make an informed assessment of the likely chance of winning and the amount of money at stake. Claims often settle once the parties have had the chance to see the opponent’s evidence and you should bear in mind that regardless of how strong a case you think you have, the Judge may not agree and you could potentially lose.
Please contact us today if you would like to discuss your case. We provide Employment Tribunal Representation and Employment Tribunal Insurance and we would be more than happy to give you a free, no-obligation quotation.
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About the author
James is on the Business Development & Account Management team at Neathouse Partners and regularly posts articles surrounding issues in HR & Employment Law, including case law & legislation updates. If you have a particular issue you would like addressed, feel free to drop James an email, and he will be happy to offer his assistance.
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