No business wants to receive an Employment Tribunal claim, but what should you do if one occurs? Mark Shulman, consultant solicitor at Keystone Law, shares his top 10 tips on how you can make dealing with claims less stressful.
Has The Advisory, Conciliation and Arbitration Service (ACAS) been approached?
Before lodging an Employment Tribunal claim, most cases first have to go to ACAS for a mandatory early conciliation process. You therefore need to check whether the Claimant has obtained an ACAS Certificate as a Tribunal cannot usually accept a claim without it.
Is the claim in time?
Most claims to an Employment Tribunal must usually be made within 3 months. Therefore, you need to consider whether the claim is in time. If not, this needs to be flagged-up in your Response Form (known as an ET3 form) in which your business sets out its defence to the Tribunal claim.
Diarise the date by which your ET3 should be lodged.
If you want to defend a claim, a response to the Tribunal must be made within 28 days of the date on which you were sent a copy of the claim. When a Tribunal sends a copy of the claim, it will notify the date by which your ET3 needs to be received. Although you can apply for an extension of time for responding to a claim, you will need appropriate grounds for doing so.
Has the claimant named the right employer?
Sometimes a claim is made against the wrong employer. If there is a difference between the name on the ACAS Certificate and the Claim Form, an employment judge must reject the claim unless there is a minor error in the details. Where the Claimant has given the same (but incorrect) name to both ACAS and the Tribunal, you should flag this up in your ET3. But be aware that a Tribunal has a wide discretion to add a new party or substitute a party to proceedings where it is in the interests of justice.
Is the claim clear?
The Tribunal should reject a claim where it is in a form which cannot sensibly be responded to. However, your ET3 response should detail any further information which is required in order to respond to the claim. Sometimes, a request for specific further particulars of a claim should be made in order to prepare your response.
Collect relevant evidence
It’s crucial to collect and preserve all documentary evidence (including electronic evidence such as emails) relevant to the complaint. Equally as important is to think about potential witnesses and their evidence as soon as possible. Apart from helping you to assess the evidence (and the strength of any defence), the parties will normally be required by the Tribunal to list all relevant documents they have. Missing documents might prove embarrassing and detrimental to presenting your case. Contemporaneous documents can often be more reliable than vague memories of witnesses many months after the events in question.
Prepare a chronology of events
This will pay dividends in terms of clarifying the order of events and enabling you to prepare a defence. It will also be useful in briefing your legal advisers about the claim and presenting a clear picture to the Tribunal at any hearing.
File your ET3 in time
Once the claim has been considered and the evidence assessed, your ET3 needs to filed with the Tribunal in time. The ET3 will need to set out your version of events and provide an explanation in response to allegations in the claim. If no response to the claim is presented, an employment judge can issue a judgment in respect of the claim. Whilst an extension of time can be granted even after the 28-day time limit, there is no guarantee that it will be granted.
Consider a possible settlement
The strength of the claim should be considered at an early stage. If the employee has a good chance of success, the sooner the case is settled, the greater the potential savings in legal costs, management time and lost opportunity costs. The normal rule in Tribunals is that each party pays their own costs. ACAS can help the parties to reach a settlement – it’s a free service and may be very helpful where the claimant is acting for themselves.
Take legal advice
Taking legal advice at an early stage can help you to understand the likelihood of realistically defending the claim. Where there are grounds for defending a claim, legal advice can assist preparation of the ET3 response and help you understand the steps necessary to put forward the best case, both on paper and at any Tribunal hearing. However, if a claim is likely to succeed, it might be better to spend time deploying a strategy to reach a settlement.