Mark Stevens on dealing with an Employment Tribunal claim
AS an employer, what do you do if you receive an Employment Tribunal claim (an ET1 form) from a disgruntled ex-employee? There are a number of steps employers should take, including:
Diarise the deadline to respond to the claim: The priority is to check the initial action required by you. Employers have 28 days from receipt of the ET1 to respond to the claim by filing form ET3 with the appropriate employment tribunal. If you do not comply with the deadline, the employment tribunal may enter a default judgment.
The deadline will always be clearly set out within the employment tribunal’s correspondence notifying you of the employee’s claim. It may be possible to seek an extension to this deadline.
To request an extension, you should write to the employment tribunal (copying in the claimant) explaining why an extension is necessary. Extensions will only be granted by the employment tribunal where there are good grounds for doing so. Even where an extension is requested, try to make sure that the ET3 form is ready to go before the 28-day deadline to err on the side of caution.
Check whether the claimant has brought his/her claim on time: Employers should always check that the employee has submitted their case within the allotted time. Generally, an employee has three months from the termination of their employment to bring an unfair dismissal claim.
If the worker is alleging discrimination, they have three months from the date of the alleged discriminatory act or the last event in a series of discriminatory acts about which they are complaining to submit their complaint. For wages claims, a worker will have three months less one day from the date that the wages were due to be paid to bring a claim.
Check whether the claimant can bring their claim: Some legal protections only apply to employees, for instance claims of unfair dismissal and for a statutory redundancy payment. If a claimant is arguing unfair dismissal and they were engaged as a self-employed consultant, or a worker, then the employer should raise this in the ET3.
Generally, an employee can only pursue an unfair dismissal complaint against their employer once they have at least two years’ service with that employer, although there are important exceptions to this rule.
Be clear what claims the employee is bringing: Usually, the claims are clearly set out on the ET1 form, but there may be further allegations included within any additional information attached to the ET1. Your defence should respond to each specific complaint that is being made.
Start collecting and preserving evidence early: Should the case proceed to a hearing, witness evidence will be required from those involved in the events and issues giving rise to the claim. To be ready for this, and to accurately draft the defence, take initial statements from relevant employees.
You should also begin to collate any relevant documents and put together your version of events and chronology. The disclosure process will require all relevant evidence (helpful or not) to be sent to the claimant.
Request further information: Sometimes an ET1 form – and the claims set out within – will be unclear. The new employment tribunal sift process should give judges better opportunities to reject these claims before they reach you.
If the ET1 is vague, part incomplete or contradictory, an employer could serve the employee with a request for Further and Better Particulars of the Claim. This will allow for specific questions to be put to the employee regarding the unclear parts of their claim.
Consider settlement: Settlement is always an option, particularly if it appears that the employee has a good chance of a successful claim.
Other factors to take into account when considering settlement will be the possibility of any adverse publicity, damage to reputation and the time and legal fees required to defend any claim.
You can also contact ACAS: Ask the ACAS conciliator assigned to that case to assist you to broker any deal you may wish to make. This can be particularly helpful in circumstances where the employee is not legally represented.
If settlement negotiations begin before the ET3 form is filed, do keep and eye on the upcoming deadline. If settlement negotiations break down or are not concluded before that deadline, ensure you file the ET3 form to protect your position.
Note for employees: There is now a fee for most employees wishing to pursue an employment tribunal claim against their employer. CFJ Mark Stevens is a solicitor at Veale Wasbrough Vizards
This article has been reproduced from the Contract Flooring Journal website. You can find them at www.contractflooringjournal.co.uk.