By Andrew McGlashan, an Associate at Fox Williams LLP
Tribunal Services’ statistics for 2010/2011 show that employment tribunal claims were up 77% on the figures for 2008/2009. It is clear from these figures that employees are far more willing to bring claims, which in turn, means that you are now far more likely to receive an ET1 form tucked away in your morning post. Luckily, we are here to ensure that you are prepared for such an event with our top tips!
- Check whether the employee has brought his/her claim on time
The general rule is that an employee has three months from their termination date to bring most employment claims e.g. for unfair dismissal. In discrimination claims however, it is three months from the date of the discriminatory act or the last event in a series of discriminatory acts about which they are complaining. For wrongful deduction claims it is three months less one day of the date that the wages were due to be paid. If the employee is out of time, your response should state that the employee is out of time and therefore the tribunal has no jurisdiction to hear the claim. Note that the tribunal does have the discretion to extend a deadline, so make sure you also address the specific claims as a fall back.
- 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 by filing form ET3 with the relevant tribunal. If you miss this deadline, the employment tribunal may enter a default judgment against you. On discovering a missed deadline, you should draft the response immediately and send it to the tribunal with an application for an extension of time, and an application for a review of the default judgment in case it has been made by the tribunal. 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!
- Check who is being sued
Has the employee got the right party? Check the employee’s allegations as they 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 whether they should be separately advised. Finally, 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.
- 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. Your defence needs to accept or deny every claim made.
- Start collecting and preserving evidence early
Although it may seem early, start talking to the people involved in the event which led to the complaint being made and take statements from them. This will help you to obtain accurate statements as the events will be clearer in everyone’s mind and ensure an accurately drafted defence. You should also begin to collate any relevant documents and put together the company’s version of events. All employees who may have relevant evidence (helpful to your case or not) should be told to preserve it; definitely no shredding! 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!
- Put together a chronology
Set out a clear chronology of the events leading up to, the event which is being complained itself and the events following it. This will assist your response as you will be able to paint a clear picture for the tribunal and help your advisers properly understand the factual context.
- Request further information
If the ET1 is vague, part incomplete or contradictory then you can serve on the employee a ‘Request for Further Particulars of the Complaint’. This will allow for specific questions to be put to the employee regarding the unclear parts of their claim. This information will assist you in deciding whether they have a legitimate complaint and help calculate their prospects of success. Note you will need to reply within 28 days when the tribunal expressly allows extra time. One approach is to answer what you can and submit the request for further particulars / information with the ET3.
- Consider early settlement
This should always be considered, particularly if it appears that the employee has a good chance of a successful claim. Other considerations regarding early settlement will be the possibility of any adverse publicity and the time and legal fees required to defend any claim. Whilst you may not want to pay the employee, doing so could make good commercial sense. Pursuing points of principle can be a costly luxury. If you are confident in your case, waiting until after you file your ET3 may be best, if you are not, an early approach to settlement is likely to be the best advice. Remember, any legal fees have to be paid by the parties themselves in tribunal proceedings. You can also consider contacting Acas as they can assist you on brokering any deal you may wish to make. This can be particularly helpful if the employee is not legally represented.
- File the ET3
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).
- And finally … take legal advice in good time!
Taking legal advice from an early stage will ensure that you understand fully the complaint being made against you, the required steps needed to comply with the tribunal procedure and help form a response and strategy to defend the claim. It will also help you determine whether you indeed have any grounds to defend the claim. Taking legal advice will ensure that you do not waste time and efforts defending a hopeless claim but rather look to arrange an early settlement instead.
Andrew McGlashan, the author of this article, can be contacted at AMcGlashan@foxwilliams.com