I have returned from holiday to find a High Court claim from a former employee. We dismissed him over a year ago so I had assumed he had decided not to take matters any further. At the time, we dismissed him for gross misconduct and he was upset that he didn’t receive his notice monies or a bonus. What should we do to respond to this?
Disgruntled employees do not always have to sue their employers in the Employment Tribunal.
Breach of contract claims over £25,000 generally must be commenced in the High Court, and currently we are seeing lots of High Court employment disputes concerning bonus awards and restrictive covenants.
It is important that you deal with this matter promptly and effectively. High Court claims follow a far more prescriptive process than the Tribunal, and litigation is governed by special court rules called the Civil Procedure Rules (“CPR”). Here are some top tips for dealing with High Court litigation.
Stage 1: Right parties, right jurisdiction, correct service?
The court generally expects parties to comply with the ‘pre-action conduct’ requirements set out in the CPR. This involves the employee (or its representatives), writing to the employer to notify it of their prospective claim and the employer responding. The purpose of this process is to allow the parties an opportunity to reach a resolution without recourse to court.
Often, the dispute is not resolved and the employee issues their claim at court.
When a claim is commenced, you will receive a claim form and (or followed by) particulars of claim.
Immediate points to check:
- Is the employee suing the right company?
The employee needs to sue its employer as named on the contract. You don’t want to accept service of a claim when there is no relationship between you and the employee (e.g. the employee commences a claim against the parent company but is in fact employed by a subsidiary).
- Has the claim been commenced in the correct jurisdiction?
Employment contracts generally provide for the jurisdiction in which a claim should be commenced. You are entitled to challenge the jurisdiction of a claim, if it is issued in a different court to that provided in the contract. If the contract does not include a jurisdiction clause, the position is more complicated, but that does not prevent you from challenging the court’s jurisdiction.
- Has the claim been properly served?
If the employee has tried to circumvent the formal service procedures under the CPR, don’t let them get away with it – accepting service generally ‘cures’ their errors.
Stage 2: Preserve documents, instruct your legal team
Do not destroy any documents relevant to the employee and their claim.
Do not create any documents either – this means, avoid discussing the claim internally over email, as you risk those documents falling to be disclosed (such documents might be protected by litigation privilege, but not always).
It may sound self-serving, but ideally you should instruct a legal team early on to handle the proceedings – claims are time consuming and can be complex (both on the law and the court procedure), lawyers are trained to deal with them and you probably are not. So, whilst you may want to do it yourself to save costs, it could cost you more in the long run.
Stage 3: Acknowledge service and defend – any counterclaim?
All proceedings work to a timetable for each stage and with timetables come deadlines. Put them in your diary straight away.
The first deadline is to acknowledge service of the claim within 14 days of service of the claim (assuming no issues arise under stage 1). You will then need to file your defence within 28 days of the claim.
Consider whether you have a counterclaim – any misuse of company credit cards or the expenses policy? Any potential breaches of covenants by the employee?
Stage 4: Disclosure and witness statements
Disclosure in the High Court is more onerous than in the Tribunal. A party must disclose all documents in its possession or control which (1) support their case (2) support the other party’s case (3) adversely affect their case.
The parties are expected to discuss and try to agree early on:
- What and how searches should be conducted (hard copy and electronic); and
- what categories of documents either party expects to see.
As most documents and communications are now electronic, disclosure of documents via electronic means is generally the most cost effective, particularly where the disclosure could be voluminous.
Make sure you have also decided early on who you will need to give witness statements, that they have agreed to do so and are available to attend trial to give oral evidence: little weight is added to statements if the witness is not available to give evidence at trial.
Stage 5: Pressure tactics – Requests for Further Information, specific disclosure
Always be alert to ways of keeping pressure on your opponent, which are useful tools in driving settlement.
- Formal Requests for Further Information on any of the employee’s statements of case (such as, Particulars of Claim, Reply to Defence or Defence to Counterclaim).
- Raising disclosure enquiries and/or applying for specific disclosure of documents you consider to be within the employee’s possession or control, which it hasn’t disclosed and which you consider to be relevant to the proceedings.
Stage 6: consider settlement options, or proceed to trial?
Most cases settle – only a small percentage make it to trial.
Preparation for and attendance at trial is the most expensive part of the process, so try to avoid it. It often makes more commercial sense to use the money you would have to spend on the lawyers to make an offer of payment to the employee (if appropriate) to settle the proceedings.
Although, sometimes, particularly when it involves the enforceability of covenants (so a non-money claim), it makes more commercial sense to go to trial in order to protect the business.