Unless you’re a solicitor, the arrival of an ET1 employment tribunal claim document does tend to cast a gloom over the morning.
Such claims have risen considerably in recent years and, in the current economic climate, contractual changes and redundancy dismissals are commonplace.
In an ideal world, we should be ensuring compliant, timely and tactical management in order to discourage the likelihood of tribunal applications in the first place. If your managers are able to manage in a robust and appropriate fashion, that’s the best route.
And it really does work. In the last 15 years, we’ve only had three trials where clients took our advice and we won them all. But we’ve had more than 100 cases that we’ve either inherited or where customers have chosen not to take on our recommendations.
Because the compensation culture, enhanced by the recession, is here to stay, HR professionals are likely to see many more ET1s land on their desks in future and so need to learn how to handle them as part of their professional practice.
Although I have seen no official research, senior HR consultants and practitioners suggest that the ultimate fear for young HR professionals is being taken to an employment tribunal. Therefore, they simply hand those ET1s straight over to a solicitor.
But HR has long wanted to be viewed as a partner that adds value to the business and this is a fantastic opportunity to do so.
Get actively involved
Operations teams have a tendency to ‘shoot first and ask questions later’. If this approach has resulted in metaphorical ‘dead bodies’ and led to you being landed with a tribunal claim, then remember that it is also an opportunity to give line managers a reality check.
So get actively involved in managing claims, with a view to fighting most of them yourself. Unless it’s a very complex matter, in which case specialist legal advice is a sensible precaution, it is far more cost-effective to fight your own corner.
Not only are solicitors expensive, but the quality of legal services available is also extremely variable. Many solicitors instruct counsel so you pay two lots of legal fees. The cost for a two-day hearing can quite easily exceed £10,000 in order to present the case, even if you win.
As the vast majority of cases deal with quite straightforward matters usually relating to unfair or constructive unfair dismissal or unlawful deduction of wages, it makes sense to be able to present them yourself.
Chances are that you will already have all the facts at your fingertips, which means that you should be fully up-to-speed on the relevant information and, therefore, best-placed to tackle the problem. If you brief a third party, he or she will have to spend time – all billable – on reading the case themselves.
Tribunal claims can arise at any time and it pays to be prepared. Some 80% are settled out-of-court or withdrawn so you need to know what happens in the time between an ET1 being delivered and a tribunal taking place.
Acquaint yourself with the process. Shadow someone with experience and get some training.
Here are some additional tips to get you started:
1. Check whether the claim has been submitted on time. The general rule is that an employee has three months from the effective date of their contract termination in which to submit one. If the complaint is about discrimination, they have three months from the date of the last act of discrimination that they complained about.
2. Submit your defence within 28 days of receiving the ET1 document – if you miss the deadline, the tribunal will have no sympathy and a judgement will be made against you.
3. Deal with each allegation separately and cover every point raised by the employee.
4. Collect and keep evidence from an early stage.
5. Take statements from witnesses as soon as possible because memories fade quickly with the passage of time.
6. If the ET1 is unclear, you are within your rights to request further and better particulars. The claimant then has to respond to your specific questions and if they don’t, you can request a strike-out.
7. If you think that the claim has no reasonable prospect of success or, for example, it is out of time, you can apply for a pre- hearing review. If the tribunal grants one and agrees with your submission, it can strike out all or parts of the employee’s claim.