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Steven Eckett

Bishop & Sewell LLP

Senior Employment Lawyer

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Managing an Employment Tribunal claim from an Employer’s perspective

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Any Employer can be the subject of an employment tribunal claim, even those that are well managed, have the best Human Resources and legal support services, and who adopt best policies, practices and procedures. Many Employers can recall various horror stories where they have received without any sense of expectation an Employment Tribunal claim in the post,

The receipt by an Employer of an ET1 (Claim form) will most certainly not be greeted with open arms. However if such claims are handled properly then they can generally be less of a challenge for most Employers than might be anticipated.  It is also correct to say that businesses that are well managed and who adopt best practice policies, practices and procedures are usually best placed to successfully defend such claims, especially those that can be described as vexatious or misconceived.

This article therefore looks at what an Employer needs to do if they are in the unenviable position of receiving a Form ET1 in the post and what can be involved in managing the claim.

1. Receiving Form ET1

Most claims are filed on-line these days and now attract an issue fee. Currently claims are made directly to the relevant Employment Tribunal office, although it is widely anticipated that from Spring 2014, claims will in the first instance have to be filed with ACAS. The role of ACAS will be to attempt to facilitate settlement and there will be a window of opportunity of 28 days for the parties to attempt settlement before a claim can then be filed with the relevant Employment Tribunal.

In the event that an Employer is unlucky enough to receive a Form ET1 in the post then in the first instance they will need to carefully read the documentation. Currently the Employment Tribunal will also issue an ET2 which will advise the Employer of the date that they need to file their completed response on Form ET3. The Employment Tribunal will also issue a blank Form ET3 for completion which can also be completed by or on behalf of the Employer on-line.

It is vitally important therefore that the completed Form ET3 is therefore issued within the set deadline (usually 28 days from the date of issue of the claim by the Employment Tribunal) to avoid the Employer being barred from defending the claim.  

If an Employer believes that they are going to require more time to complete the Form ET3, for example because one of the main parties to the issues is away on holiday, then it is advisable to write to the Employment Tribunal requesting an extension of time. It is also a good idea to see if the Claimant will also agree to this in advance to increase the chances of the application being successful.

Many Employers will also not have the benefit and support of any internal Human Resources and Legal Department and so will need to decide quickly whether to handle the claim themselves or to refer it to an external law firm or legal advisor. Clearly the implication of instructing external legal advisors is that this is going to increase legal costs which for the most part cannot be claimed back from the Claimant.  

On the other hand the involvement of external legal advisors can be cost-effective if it demonstrates to the Claimant that the claim is being vigorously defended and this can sometimes lead to an early commercial settlement. The advantage being that this can prevent legal costs being incurred long term in dealing with all of the work that needs to be undertaken in preparing for the main hearing.

Most legal advisors worth their salt should for example be able to determine whether there is any merit in the Claimant’s allegations and whether a case can be settled at an early stage before additional and heftier legal costs are incurred further along the line.

2. Preliminary Hearing

Once the Form ET3 has been filed the Employment Tribunal might write to the parties or their legal advisors setting down a date and time for a Preliminary Hearing (formerly known as a Case Management Discussion) either at the Employment Tribunal in person or by telephone. The purpose of this type of Preliminary Hearing is generally to identify the issues where they are unclear and to set down some general house-keeping rules for the management of the claim up to the main hearing.

The Employment Tribunal Judge will therefore set down specific dates for example to deal with disclosure, the preparation and exchange of witness statements, and the preparation of bundles for use at the main hearing.

It may also be the position that the parties may request or that the Employment Tribunal will list a longer Preliminary hearing (formerly known as a Pre-hearing review) to determine specific issues for example whether a Claimant has a disability, or to determine the merits of a potentially weak claim with a view to striking it out.

3. Requests for additional information and the use of Questionnaires

This is a mechanism to assist an Employer who is seeking more information in relation to the specific complaints and allegations and used to be known as a Request for Further and Better Particulars. If a party fails to respond to this type of request then the party seeking the additional information can write to the Employment Tribunal requesting an Order compelling the party against whom the additional information is sought, to provide a response. The Employment Tribunal is likely to take an adverse view to any failure to provide a response without a reasonable explanation.

In the event that the Employer is the subject of a discrimination complaint relating to one of nine possible protected characteristics then currently a Claimant can serve a Questionnaire on the Employer. The Questionnaire is rather long and can be something of a fishing expedition in terms of the amount of detail the Claimant is seeking. The Government however has announced its intention to abolish Questionnaires at some point in 2014 which is good news for Employers. Many lawyers however are likely to mourn their passing and the loss of a regular part of the Employment Tribunal procedure.

4. Disclosure

The parties are usually directed by the Employment Tribunal to disclose all documentation to the other side say within typically 21 days and to enable inspection within a further 7 days. This also includes documentation that is not helpful to the employer’s interests. Most parties usually provide a List of Documents and then either provide a full copy of the documentation to the other side in the post or Document Exchange or invite the other side to request specific copies of the documentation from the List of Documents. Usually much of the documentation is common to both parties however this may not be apparent from reading the initial List of Documents.

5. Preparing a Bundle List

Once full disclosure has taken place the parties can then attempt to agree a bundle list containing all of the relevant documentation for use at the main Employment Tribunal hearing. Usually it is the Employer or the Respondent who prepares the bundle and this is not a bad thing as it enables the Employer to control the presentation of the bundle and to ensure that the documentation is properly presented and paginated for the benefit of the Employment Tribunal Panel. It is also argued that Employers have more in the way of administrative resources and is in a better financial position to collate the bundle, and that there is generally no prejudice to the Employer. It is also important to check whether the bundles need to be brought along to the first day of the hearing or whether the Employment Judge has directed that the bundles need to be sent to the Employment Tribunal a few days before the hearing to enable the Panel to read it in advance of the commencement of the hearing.

6. Witness Statements

The Employer also needs to identify which witnesses it is going to call to give evidence. This should usually involve those individuals who are involved in the decision making, for example the person who made the decision to dismiss the Employee, and the person who may have conducted any appeal where a dismissal is involved. 

Witness Statements are usually signed and exchanged a short time before the commencement of the main hearing, typically seven to 14 days although it is not too uncommon to exchange witness statements a couple of months before the commencement of the main hearing.

In the Employment Tribunal, all evidence is given by way of witness statements and they are either read out to the Employment Tribunal by the witness in person or are taken as read. The practice is however increasingly these days for Employment Tribunals to read witness statements themselves and to treat them as having been read.

In relation to witness statements their preparation is absolutely critical and should not contain any inaccuracies, inconsistencies or typographical errors. They should also be set out neatly with clearly numbered paragraphs, and page numbers and any documentation referred to should be cross-referenced back to the bundle.

7. Final Preparations for the hearing

Many Employers instruct their legal advisors to use the services of a Barrister to undertake the advocacy at the main hearing. It is often the position that the services of a Junior Barrister can be more cost effective than that of a Solicitor. It is also important to bear in mind that Barristers are specifically trained to utilise their advocacy skills and are best placed to undertake the hearing.

When Barristers are involved, their instructing Solicitor or legal advisor usually prepares a set of Instructions to Counsel, which sets out the facts and issues in full and is accompanied by a set of the Bundle of documents and the witness statements.

In order to prepare, it is common for the Barrister to arrange a conference with the client and their Instructing Solicitor and perhaps the witnesses in order to clarify any of the issues and to provide any advice in relation to the imminent main hearing.

The parties Solicitors or legal advisors will usually by way of preparation before the hearing and upon the direction of the Employment Tribunal try and agree a list of issues. In turn the Barrister will usually prepare Skeleton arguments to put before the Employment Judge and Panel before the commencement of the main hearing.

By way of summary, receiving an Employment Tribunal claim in the post, although unpleasant can be manageable if the pointers set out in this article are observed. No Employer can of course guarantee that they are also going to win and successfully defend any claim. However a combination of following internal good practices and procedures to promote harmonious employee relations and thorough preparation is key to increasing the prospects of successfully defeating an Employment Tribunal claim.

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Steven Eckett

Senior Employment Lawyer

Read more from Steven Eckett
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