Defending an employment tribunal claim

A complex, costly, and lengthy process, an employment tribunal claim is definitely something you want to avoid. But if an employee has filed a claim against your business, it is important to know you have the correct procedures in place. Seeking advice from an experienced employment solicitor early on in the process gives you the best options to defend the claims.

What are the initial steps in defending an employment tribunal claim?

From the date that the tribunal sent a copy of the claim form to you, you have 28 days to respond, so we suggest diarising or setting a reminder of this date, so you do not miss it. The notice you receive will also contain other dates and deadlines so make sure you note this down also. 

You will then need to review the following:

• What claim is being made.
• Whether ACAS early conciliation requirements have been complied with.
• What their employment status is currently.
• Whether they are able to bring the claim.
• Whether the claim is in time.
• Any other jurisdiction or applicable law issues.

These questions and areas of review can be complicated and confusing and they also determine the course and success of the claim from the beginning. Therefore, it is advisable to seek legal advice at this stage.

What needs to be considered when preparing to respond to an employment tribunal claim?

Your response to a claim needs to be using the ET3 form which is a standard form. It will require grounds of response to be attached, addressing each paragraph and claim stated in the employee’s grounds of claim. 

It is likely that you will need legal advice on the prospects of success with each claim and a reasonable estimate of the compensation the employee is likely to receive if successful. The response you submit is an important document in setting the course of the trial and what the legal, factual and jurisdictional issues are that the tribunal will need to determine – therefore legal advice from an expert in employment law is a good route to go down at this stage.

What happens after I submitted my response to the employment tribunal claim?

Preliminary hearing

The initial notice of the claim will usually contain the date of the preliminary hearing. This hearing sets out to determine administrative issues, further directions to prepare and progress the case, and issues to be determined at the final hearing. This stage generally sets the tone and the proceedings of the case.

Disclosure

Both parties must disclose to the other and the tribunal all relevant documentation to the issues of the case. This exercise can be substantial and is a strict duty on both parties. It is advisable to speak to a lawyer about what can and cannot be disclosed as there a number of restrictions which you need to be aware of.

Hearing bundle

As the employer, you will be asked by the tribunal to prepare the hearing bundle. The parties must decide what documents are to be included, considering whether the documents will be referred to by witnesses, cross-examined by the other party or if either party will make submissions about the document. It is a specific, detailed, and important part of the process in preparing for the final hearing.

Witness statements

If either party decides to call on witnesses, they will need to be identified and write a statement each. This will be what is known as their evidence-in-chief to the tribunal. The witness documents should refer to the hearing bundle and provide evidence of the relevant issues being discussed.

Final hearing

Before the final hearing there are several steps and things you should consider:

• Checking witness statements
• Checking page number references
• Instructing a solicitor
• Considering further applications
• Preparing a skeleton argument
• Preparing the requisite number of bundles for the tribunal and parties
• Preparing your witnesses

What should I do now and how can Hegarty help?

Seeking expert legal advice at an early stage, either on receipt of a tribunal claim, or prior to the claim being made, can help to ensure that either the claim is not made at all or that you are working towards the ideal outcome for your business. 

If you need advice on an employment tribunal claim you have received or are expecting to receive, contact our employment law team.