Form ET3: responding to a tribunal claim

Form ET3 is an important document for employers facing an employment tribunal claim from an existing, former or even prospective employee.

For employers, it will be important to know how to respond using ET3 in way that is legally compliant with the claims process and ensures your organisation’s best interests are protected.

What is Form ET3?

To bring a claim before an employment tribunal, a claimant is required to lodge form ET1. This is the document in which the claimant will set out the basis of their claim against an employer. This could relate to workplace legal complaints such as pay disputes, dismissals or discrimination.

In response, the employer must use form ET3 to set out their defence to the claim, or claims, being brought against them in the tribunal.

Prior to issuing a claim, the Advisory, Conciliation and Arbitration Service (ACAS) will provide the parties with the opportunity to resolve their dispute through early conciliation, although this process is not mandatory.

Who uses Form ET3?

Once a claim has been submitted, where any attempts at early conciliation have failed, the tribunal will send the employer a ‘response pack’. This will include a copy of the ET1, and provide a copy of an ET3 for you to complete.

You can respond by filling out and returning the response pack you’re sent, by downloading and printing out the response form, or online. If you fail to respond to any claim made against you, either online or by post, the tribunal might decide the case in the claimant’s favour. This is called a default judgment.

If you are not submitting a response online, you will need to send it to the relevant employment tribunal address, retaining a copy for your own records. You should also send a copy to the claimant.

How do you complete the ET3 Form?

The ET3 form has a significant role in the claims process. This is where you will set out the summary of your defence, ie; your version of events, to any claim(s) made against you. You will need the following information to complete Form ET3:

• Your case number, contained in the letter sent by the tribunal
• Details of the claimant’s employment, including their start and end dates, hours of work and period of notice
  Details of the claimant’s pay and benefits, before and after tax
• Any ACAS ‘early conciliation’ details, such as the certificate number
• A description of your response to the claim, including dates and the people involved
• Contact details of your legal representative

If you disagree with what the claimant has alleged against you in their ET1, you must indicate at section 6 of the ET3 that you wish to defend the claim. If your response does not contain the necessary information, including whether you want to defend all or part of the claim, it will be returned and the claim will be dealt with as if a response has not been received.

You must also ensure that you are clear about the basis upon which you seek to defend any claim. Even though you will be able to submit witness statements and documentation to substantiate what you want to say in more detail at a later date, your initial response on the ET3 will form the foundation of your defence.

Once the ET3 form has been received by the tribunal, you can expect a response within 5 working days, incjuding details of the next steps in the process.

What are the time limits for the ET3?

There is a time limit for responding to a claim in the employment tribunal of 28 days from the date the tribunal sent you a copy of the claimant’s claim form.

If you’re late or do not respond, the tribunal may make a decision against you without a hearing. You must, therefore, deal with the matter promptly, or risk a default judgment being entered against you. If the deadline for submitting your ET3 response to the claim is closer than 5 days, you should check with the relevant tribunal that it has been received before the time limit expires.

You can ask the tribunal to extend the time limit if it’s not possible for you to fill in the ET3 form within the prescribed time, for example, if you need information from an important witness who is currently absent from work on annual leave.

You must request an extension in writing as soon as possible, providing full reasons why you are asking for extra time. If you do not apply within the 28-day time limit, the claim is likely to be treated as one to which no defence has been submitted and judgment may be entered against you.

You should also not assume that you will be granted an extension, or that an extension has been agreed, unless you are notified in writing by the tribunal that your application for an extension of time has been approved.

What happens after submitting the ET3?

After submitting an ET3 form, a tribunal judge will decide, having considered the ET1 and ET3 together, whether or not the case requires a preliminary hearing.

The tribunal may issue a case management order, with standard directions, together with time limits for compliance. If, however, the case is complex, for example, involving allegations of unlawful discrimination, a preliminary hearing may be necessary. You should receive a letter from the tribunal notifying you of the date of this hearing and explaining in advance what will be discussed.

The preliminary hearing will help the tribunal to put in place a timetable for the exchange of evidence, including witness statements and documentation. In addition to setting case management directions, the tribunal will also set a date and timescale for the final hearing of the claim.

In some cases, the tribunal may use a preliminary hearing to help identify and narrow the issues involved, for example, whether certain elements of the claim are out of time, or by striking out parts of a claim or defence. The hearing could even be used to determine substantive issues in advance of a final hearing, such as whether the claimant is disabled in the context of a discrimination claim.

What can you expect at the final hearing?

Once a case management order has been put in place, either where standard directions are issued by the tribunal or following a preliminary hearing, the parties will need to comply with this order by disclosing documents and exchanging witness statements in accordance with the prescribed timetable.

You must also arrange in advance for your witnesses to attend the final hearing, and prepare copies of documents you will be relying on. This could include, for example, the claimant’s employment contract, pay slips or minutes of meetings.

It is open to the parties to settle a claim at any time during these preparatory stages, although the matter will proceed to a final hearing, as directed, if the matter cannot otherwise be resolved on mutually agreeable terms.

The length of the final hearing will depend on the issues involved and the number of witnesses to be called, taking anything between half a day and several weeks, although in most cases it will take between 1-3 days.

Having considered the claim and defence, as set out in the ET1 and ET3, supported by oral and written evidence from both sides, together with any submissions from the parties, the tribunal will make a final decision.

You may be informed of this decision on the day, although in some cases the tribunal will notify the parties in writing after the hearing has taken place.

What if the tribunal rules against my organisation?

If the claim is successful, the tribunal will decide what consequences will follow. In complex cases, the issue of remedies will be adjourned to another hearing.

Any remedies against you could include an order to pay the claimant an amount of compensation, including damages for loss of earnings. There can be limits to the amount of money a tribunal can award, although there is no limit in cases of discrimination. You may also be ordered to reinstate a claimant that has been dismissed, for example, following a finding by the tribunal of unfair dismissal.

In addition to any compensation, or other tribunal order, you may be ordered to pay the claimant’s expenses and to pay back any state benefits that the claimant has received while taking their case to the tribunal.

If the claim is unsuccessful, you will not usually be awarded any costs, although where the claimant has acted unreasonably or if their claim had no reasonable prospects of success, you may be entitled to claim back any legal expenses.

Form ET3 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.