This article was written for and first featured in PRW.
Tribunal Services’ statistics for 2010/2011 show employment tribunal claims grew 77% compared with 2008/2009. But while employees are far more willing to bring claims, companies can prepare for such an outcome.
Employees generally have three months from their termination date to bring most employment claims. In discrimination claims it is three months from the date of the discriminatory act or the last event in a series of discriminatory acts. For wrongful deduction claims it is three months less one day of the date that wages were due to be paid.
For wrongful deduction claims it is three months less one day of the date that wages were due to be paid. If the employee is out of time any response should state that and therefore the tribunal has no jurisdiction. However, the tribunal can extend a deadline, so address the specific claims as a fall-back.
Note the deadline to respond
From receipt of the ET1 form – which is an application to make a claim heard at an employment tribunal – a company has 28 days to respond by filing a response form, ET3. If you miss this deadline, the employment tribunal may enter a default judgment against you. On discovering a missed deadline, you should draft the response immediately and send it to the tribunal with an application for an extension, and an application for a review of the default judgment in case the tribunal has made one. When you receive the ET1 from the tribunal, you should also receive written confirmation of the deadline for responding.
Who is being sued?
Check the employee’s allegations, as they may not just be against the company. Check whether the employee is bringing allegations against other staff members within the company; if so they will become parties to the claim. You will have to consider carefully the allegations made against staff and whether it is appropriate that you respond to the claim on their behalf as individuals or whether they should be separately advised. Finally, check that the company being sued is not an overseas sister company. If it is, consider informing the tribunal and the employee that you refuse to accept the paperwork.
What is the employee claiming?
Usually, the claims will be indicated clearly on the ET1 form, but there may be further allegations within any additional information attached. Your defence needs to accept or deny every claim made.
Collect and preserve evidence
You should collate any relevant documents and put together the company’s version of events. All employees who may have relevant evidence (helpful to your case or not) should be told to preserve it; nothing should be destroyed. You may want to consider requesting from the tribunal an extension for submitting the ET3 if you think you will need more time to collect evidence.
Put together a timeline
Set out a clear chronology of the events leading up to the event that is being complained of and the events following it. This will assist your response as you will be able to paint a clear picture for the tribunal and help your advisers properly understand the factual context.
Request further information
If the ET1 is vague, part incomplete or contradictory then you can serve on the employee a ‘Request for Further Particulars of the Complaint’. This will allow for specific questions to be put to the employee regarding the unclear parts of their claim. The information will assist you in deciding whether they have a legitimate complaint and help calculate their prospects of success.
Consider early settlement
This should always be considered, particularly if it appears that the employee has a good chance of a successful claim. While you may not want to pay the employee, doing so could make good commercial sense and pursuing points of principle can be a costly luxury. If you are confident of your case, waiting until after you file your ET3 may be the best course of action. However if you are not, an early approach to settlement is likely to be the best advice. Remember, any legal fees have to be paid by the parties themselves in tribunal proceedings.
File the ET3
Where negotiations have not completed by the time the deadline for filing the ET3 is approaching, the ET3 should be filed anyway, as a precaution (in case negotiations break down).