According to latest quarterly employment tribunal figures from the Ministry of Justice, the number of employment claims continues to fluctuate, with a 28% rise last quarter, and a 6% increase in the latest statistics. Disposals decreased by 6% as more cases are withdrawn, settled out of court or dismissed.
Getting the process in place
With claims increasing, it’s always wise for any HR professional to be prepared for a possible employment claim to land on their desk. Having a formal process in place with the following seven steps will ensure that correct procedure is adhered to when responding to a claim, helping minimise its impact and hopefully reduce the risk of it ever reaching court:
1. Check the dates
Most claims presented to the employment tribunal have very short deadlines and need to be raised within three months of the incident, deduction or dismissal complained about. This can be extended by a further four to six weeks by the ACAS conciliation process. It follows that employers have a very short timescale within which to respond, just 28 days. Therefore, the first step is to identify the date on which you must submit your response to the allegations to the Employment Tribunal on the specific ET3 form.
Once you understand the allegations made, you should speak to the individuals involved or review any disciplinary or grievance procedure that has already been undertaken
Sometimes the tribunal will also set the date for the full hearing or a preliminary hearing at the outset and these dates should also be diarised. At an early stage it is also useful to consider whether you wish to have legal representation at the hearings and look to pencil this in. You also need to be careful to check whether the hearings will take place in person, by telephone or online.
2. Check the conciliation certificate
Most claims also have to go through a period of early conciliation through ACAS before being filed with the employment tribunal and you should therefore check that the appropriate EC certificate has been issued. The ACAS conciliator should have already been in touch with someone within the business, usually in the HR department, so this will enable you to identify which employees in your organisation already have an awareness of the dispute and the issues surrounding the claim.
3. Consider the claims
A careful review of the ET1 claim form should be carried out to identify what claims are being raised and which employees within the organisation will be important to assist with preparing the response for the business. Usually HR can co-ordinate this, or you can seek external legal advice on this, any overall strategy and the prospects of successfully defending the claim.
4. Seek information from the relevant managers and colleagues
Once you understand the allegations made, you should speak to the individuals involved or review any disciplinary or grievance procedure that has already been undertaken. It will be useful to ask the individuals to set out in writing their recollection at as early stage as possible and talk to your legal advisors if appropriate. These notes will form the basis of later witness statements if the case progresses that will be provided in exchange for the Claimants statements.
5. Consider any relevant documents
The tribunal process will provide for the ‘disclosure’ of relevant documents and therefore at an early stage you should take steps to identify which documents, such as contracts or disciplinary procedures, emails or letters are relevant to the issues included in the claim form. It is also useful to list these in date order as the case management orders will also provide for chronological lists of documents to be exchanged with the Claimant.
There may also be extensive electronic disclosure requirements and again, your legal advisers can assist with this process. Be careful that the disclosure obligation will apply to documents even if they do not help you defend the claims!
Once lists and documents are exchanged, these will need to be assessed to consider their impact on the claims and the prospects of successfully defending the allegations.
6. Consider settlement
It’s likely you’ll have already considered this before receiving the claim form, but given the time and cost involved with defending employment tribunal claims, it’s worth keeping the matter under review as any judgment from the tribunal will be published online and sometimes a commercial settlement can be a reasonable outcome.
Unfortunately, it can often be the case that the matter can be settled for less than the costs of defending the claim to a full hearing, however, where the issue may affect a number of other employees then the impact of the settlement on the overall organisation should be considered.
If you decide a settlement is appropriate, then there are two main ways to achieve this; either making an offer through the ACAS conciliation service which would be concluded by way of a COT3 agreement or by making a direct without prejudice offer, subject to a formal settlement agreement. The latter will require the Claimant to receive independent legal advice on the terms and the employer would usually cover the costs of this advice as well as the cost of drafting the agreement (unless they already have a standard version).
Whilst the number of employment disputes are on the rise, it’s important for any organisations as well as HR professionals to best prepare themselves and refresh their expertise around this area
7. File your response in time!
Once you have gathered all the information you or your legal advisor will be in a position to draft the response to the claims and file this with the tribunal on form ET3. It’s very important that this is done within the deadline given in the correct format as failure to do so could lead to judgment in favour of the claimant.
Whilst the number of employment disputes are on the rise, it’s important for any organisations as well as HR professionals to best prepare themselves and refresh their expertise around this area. Avoiding tribunals hitting court will be the target of many businesses, HR departments can save the organisation costs and also the time and reputation loss of going to court by ensuring that they fully understand the correct procedure and it’s followed to the letter.