If a workplace grievance or dispute cannot be resolved informally between an employer and an employee, an employer may find an employment tribunal claim being brought against them by the employee which they are forced to defend. It is therefore good practice that an employer is familiar with the employment tribunal rules and procedures, should the situation arise.
This guide to the employment tribunal rules helps employers understand what is expected of them if a claim is brought against them by an employee and how best to defend that claim.
Defending Employment Tribunal claims
An employment tribunal claim can be brought for a number of reasons, such as unfair dismissal, unlawful discrimination or disability discrimination or issues such as wages disputes and redundancy payments.
An employment tribunal is a specialist employment court, in which employment law disputes are resolved in a formal setting. A tribunal is made up of a maximum of three people: a legally qualified employment judge and possibly two lay members who would be representatives of the employer and the employee.
The rules governing procedure in an employment tribunal are found in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237). These rules cover all procedure to be followed in a case, from starting and responding to a claim, case management orders, hearings, and the final tribunal decision.
Evidence produced in an employment tribunal case can be oral evidence given by witnesses as part of the proceedings, or written evidence, which might include employment contracts and payslips. All evidence must be directly relevant to the issues in dispute.
A claim must usually be brought within three months less one day. For example, in a case of unfair dismissal, an employee must issue a claim within three months less one day from the date their employment contract was terminated.
Once a claim is brought, the timeframe can be prolonged, which is often an incentive to settle a case early on. The average timeframe from bringing a claim to receiving a tribunal’s final decision can be as long as 27 weeks, but if the case is particularly complex, it can take up to a year to be resolved. A settlement can be drawn up in a matter of days.
As a result of the COVID pandemic, these timeframes are potentially even longer; a tribunal ‘road map’ was introduced by way of an update on the rules and procedures following a massive backlog in the tribunal’s caseload. The roadmap focuses on the future of in-person and video hearings post-pandemic.
Responding to a tribunal claim
The following are key steps if you’ve received an employment tribunal claim against your organisation:
- Act promptly: An employer should act quickly and deal with a claim promptly to ensure they are in the best possible position to defend the claim and to avoid any unnecessary costs through delay.
- Consider the case merits: An employer should assess the strengths and weaknesses of the employee’s case and decide whether it would be worthwhile defending the claim or whether it would be better and more cost-effective to seek a settlement.
- Respond in detail and only on the relevant facts: An employer should take the opportunity to put as much detail as possible into their defence, by focusing on the specific allegations and legal issues involved.
- Adhere to the deadlines: It is imperative that an employer sticks to the given deadlines within the tribunal timetable, or they risk losing the claim on a default basis. Extensions to deadlines may be granted, but only at the judge’s discretion.
- Seek legal advice: Although the tribunal judge is under a duty to take reasonable steps to address any imbalance between the parties, where for example, one party has legal representation and the other does not, it is still always advisable to seek legal advice and appoint legal representation in a tribunal case. Represented parties tend to fare better than litigants in person.
Stages in the Employment Tribunal procedure
ACAS Early conciliation
Before a claimant brings a claim, they must show that they have attempted an early conciliation, through the ACAS Early Conciliation procedure; they will get an EC certificate confirming they have done this. Working through this procedure aims to resolve a dispute without having to resort to legal action. Parties are not obliged to participate in this procedure, but the timeframe for a conciliatory settlement is far shorter at six weeks than a decision made through taking legal action. This six-week period effectively freezes the time limit within which a claimant must bring a claim, to allow for resolution.
Not only is the timeframe for resolution far shorter through conciliation, but it is also far more cost-effective and allows for a more harmonious ongoing relationship between employer and employee.
If a settlement is reached, it will be written up by ACAS in a form COT3, which is legally binding and prevents any further claim being brought by the employee. An employer can attempt a settlement at any time in the proceedings by offering compensation to the employee. Such settlement agreement must be carefully drafted to ensure the employer is protected from any future claims.
Commencement of proceedings
A claim is started in an employment tribunal by the employee issuing an ET1 claim form, either online or by post. The employer, as defendant, will be sent a response pack when a claim is issued against them and has 28 days from the date of receiving this pack to issue a defence or response to the claim in the form of an ET3 form, again either online or by post. It is vital that the response is received by the tribunal by the date on the pack, and it is the employer’s duty to ensure this is done within the time limit. If it is not, default judgment may be made in the claimant’s favour. An extension to the time limit may be requested within the 28-day period, if valid reasons are given, but will only be granted at the court’s discretion.
Preliminary hearing
A tribunal will decide whether a preliminary hearing is needed after assessing the basis of the claim as set out in the forms ET1 and ET3 and will notify the parties of the date if deemed necessary. Not every tribunal claim will require a preliminary hearing. They are more common in complex cases where the tribunal will aim to clarify the relevant issues in the case and set appropriate case management directions for the final hearing. Issues to be determined at a preliminary hearing may include the date, time and length of the final hearing, a timetable for exchange of documents and establishing the witnesses to be called. It also may be used to determine specific issues in the case, such as whether any parts of the claim should be struck out. Generally, the merits of the case will not be discussed at this stage.
If the issues to be determined at a preliminary hearing are simple case management directions, the hearing may be listed by telephone for which an employer can request their legal representative conduct this on their behalf; if it is listed in person, it can be attended by an employer’s legal representative without the need for the employer to attend themselves.
However, for more complex cases, it is preferable that an employer attends in person, not only to oversee the running of the defence and to give instructions to the legal representative, but they can familiarise themselves with the process ahead of the final hearing. It is also a good opportunity to enter into discussions with the claimant outside of the hearing and come to a possible settlement during the proceedings. Judicial mediation, where the parties are brought together for mediation before an employment judge at a private preliminary hearing, may also be an option at this stage.
Final hearing
If settlement has not been reached at this point, the case will proceed to a full hearing, which will usually be held at the employment tribunal closest to where the claimant works or worked. To prepare for the final hearing, both parties should comply with the case management order setting out directions for the disclosure of documents and the exchange of witness statements in accordance with the court’s timetable.
An employer should consider all the relevant issues in the case and ensure they have all relevant evidence, both oral and written, to support their defence. Witnesses will be required to attend the hearing, either in person or remotely, unless they are giving their evidence by way of written statement.
It is advisable that both claimant and defendant have legal representation, but it is also preferable that both parties attend the hearing in person themselves.
At the hearing, the claimant’s evidence is usually given first; an employer and his representative will have the opportunity to ask questions of the claimant and their witnesses. The defendant’s evidence is given next, and similarly the claimant can put questions to the defence. The tribunal judge is also entitled to ask questions of any witnesses giving evidence for either party.
Final arguments are then put forward, following which the tribunal makes its final decision. The decision may be made on the day or sent by post a few days or weeks afterwards. The final hearing usually lasts between one and three days, although in more complex cases, it can take several weeks.
Orders made by the Tribunal
If a claimant wins their case, the employer may be required to pay the employee compensation or even to reinstate them in their employment, where they have been dismissed. They may also be required to pay the employee’s legal expenses, or repay state benefits the employee may have received pending resolution of the case.
If an employer successfully defends their case, they will not be awarded any compensation, but a court may award them costs if the claim was brought by the employee frivolously and without reasonable chance of success.
The tribunal may be asked to reconsider its decision by either party in writing within 14 days of the final hearing decision. A good reason will be needed for any such request, for example, if new evidence has come to light, or there was a legal mistake made by the tribunal.
Best practice advice for employers
Employment tribunal claims can be avoided if an employer takes a proactive approach to managing workforce risks through preventative measures such as:
- Reviewing workplace policies frequently and checking relevant legislation is current is vital to ensure an employer is not following out-of-date practices and procedure. The onus is on the employer to fully understand their responsibilities towards their employees.
- Ensure all employees have an employment contract which fully and clearly sets out the terms and conditions of their employment; this prevents uncertainty and subsequent disputes arising. Again, ensure all legislation and policies referred to in these contracts are updated regularly.
- Any grievance that does arise between an employer and an employee should be well documented, however small it appears to be. Dealing effectively with a grievance in the early stages prevents a formal dispute occurring down the line.
Employment tribunal procedure FAQs
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Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.
