How to defend employment tribunal claims

Employment tribunals

Employment tribunal claims

Employment tribunal form ET1

Employment tribunal form ET3

Completing an ET3 online

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Defending an Employment Tribunal case - 5 tips

The employment tribunal case might be out of time

Be sure you know what the employment tribunal claims are

Keep all documents including handwritten

Obtain written statements from witnesses

Collect job adverts

Employment Tribunals
An Employment tribunal consists of three people; an employment judge, an employer and an employee. The judge is obviously a lawyer, either a barrister or a solicitor, and may be a full employment judge time or a part time employment judge. The employee or ex-employee making the claim(s) to an employment tribunal is called a 'claimant'. You, as the employer or ex-employer, are called a 'respondent'. The judgment at the end of the case can be a majority decision. In fact , the two non lawyers can outvote the employment judge. However, this seldom happens; employment tribunals usually reach unanimous decisions. There are 27 main employment tribunals in England, Wales and Scotland. Some employment tribunals have annexes. For example, the employment tribunal in Southampton has an annex in Brighton. The tribunal paperwork, such as a Directions Order or Notice of Hearing will always come from the main employment tribunal and not from the annex. The procedures in an employment tribunal are designed to be less formal than in a court. Employment tribunals tend to be located in office buildings rather than court buildings. The rules of evidence are more relaxed. However, you as an employer, should not treat employment tribunals lightly, they have the power to award very large sums of money to a successful claimant.

Employment tribunal claims
The types of claims that can be made to an employment tribunal include;
• unfair dismissal
• constructive dismissal
• sex discrimination
• race discrimination
• age discrimination
• disability discrimination
• religious discrimination
• equal pay claims
• claims of unlawful deductions from wages

Employment tribunal claim form ET1
You might not get any warning that the claimant is going to make an employment tribunal claim. Check the date the employment tribunal claim form (called an ET1) was received by the employment tribunal. Most employment tribunal claims must be received by the employment tribunal within 3 months less one day of the event complained of, otherwise the claim will be out of time. For example, if an employee was dismissed on the 8th March the claim of unfair dismissal must be received by the tribunal before midnight on the 7th of June. The ET1 form does not always make clear exactly what claims the employment tribunal has registered as having been made. You might be facing more claims that you think. For example, an allegation that you dismissed an employee because they were disabled would probably be treated by the employment tribunal as a claim of unfair dismissal plus a claim of disability discrimination, and you would need to set out your defences to both claims on the ET3 form. The ET3 form is the form on which you set out your defence(s). You must use an up to date ET3 form otherwise the employment tribunal will reject your defence(s). If you are uncertain as to excatly what claim(s) you are facing and need to defend contact Worklaw and we will find out for you free of charge.

Employment tribunal claim form ET3
You must respond to the ET1 form within 28 days of receiving it. You must use an ET3 form to respond. If, for example, you set out your response in a letter instead of using the ET3 form, the employment tribunal will not accept your response and will insist you use the ET3. However, by the time you do this you might be out of time for putting in your response, so make sure you use the ET3 form, either a printed hardcopy or the online version of the ET3. An ET3 form will have been sent to you with the ET1 claim form. But as stated below the best way to respond is to complete the online version of the ET3. With the ET3 form will be a letter from the employment tribunal to you stating the date by which the employment tribunal must receive your response to the employment tribunal claim(s). If you have a very good reason for not having filed your ET3 with the tribunal within the 28 days allowed, you can still make an application to the employment tribunal for permission to file your defence out of time. However, you have to have a very good reason, such as, the ET3 got lost in the post. The fact you might have been overworked and the ET1 got overlooked because you were so busy running your business is not likely to be a good enough reason. You will have to make your application in person at an employment tribunal hearing before an employment judge. If you need help in making an application for permission to file your defence out of time then contact contact Worklaw.

Completing an ET3 online
You can send the ET3 form to the employment tribunal by post, fax or online. The best way to send an ET3 is online. Once you click the send button you will get an email from the employment tribunal acknowledging receipt more or less straight away. If you send the ET3 by post or fax you might not get an acknowledgment from the employment tribunal for several days. This might be critical if you are close to the 28-day deadline for responding. If you have a PC use Internet Explorer or Firefox. If you have a Mac use Firefox; do not use Safari as it will not work properly. The ET3 is fairly easy to complete. The only problem is with paragraph 5.2 of the ET3 where you set out your reasons for defending the claim(s). The best way of competing this paragraph is to type out your grounds of resistance in a separate document and then paste the grounds from that separate document into paragraph 5.2. If your grounds are quite long and overflows the bottom of paragraph 5.2 then you will need to paste the 'overflow' into the additional pages at the back of the form otherwise the 'overflow' will not appear on the form and part of your defence will be missing. If you need help in completing the ET3 contact contact Worklaw.

The employment tribunal case might be out of time
Check the date the employment tribunal claim form called an ET1 was received by the employment tribunal. Most employment tribunal claims must be received by the employment tribunal within 3 months less one day of the event complained of, otherwise the claim will be out of time. For example, if an employee was dismissed on the 8th March the claim of unfair dismissal must be received by the tribunal before midnight on the 7th of June.

Be sure you know what the employment tribunal claims are
You might be facing more claims that you think. For example, an allegation that you dismissed an employee because they were disabled would probably be treated by the employment tribunal as a claim of unfair dismissal plus a claim of disability discrimination, and you would need to set out your defences to both claims on the ET3 form. If in doubt ask Worklaw exactly what you need to do to defend.

Keep all documents including handwritten
Collate and copy all documents which might relate to your defence to the claim. Do this as soon as possible. At some point, you will be ordered by the employment tribunal to give the claimant, by a certain date, a list of all documents you have which are relevant to the case and to your defence and also give photocopies of the documents on your list. The claimant will be ordered to reciprocate by sending you copies of any additional documents the claimant has. The documents relevant to your defence, are likely to include the employment contract, employee handbook, staff policies, letters, minutes of meetings, and notes of events leading to to the reason or reasons the claimant is making a claim.

Obtain written statements from witnesses
Ask anyone who may know anything about the reasons the claimant is making a claim, to write down what they know. Do this as soon as possible before they forget the details. At some point, you will be ordered by the tribunal, by a certain date, to give the claimant copies of written statements by anyone who will attend the tribunal hearing to give evidence in support of your defence. The person who made the written statement must be willing to attend the employment tribunal hearing in person.

Collect job adverts
As soon as you know the claimant has made a claim to an employment tribunal start collecting adverts for jobs which you think the claimant reasonably could have applied for. The reason for this advice takes a bit of explaining. Potentially, an employment tribunal hearing is in two parts. The first part is for the tribunal to decide whether your defence succeeds. If your defence does not succeed, the second part of the hearing is for the tribunal to decide how much compensation the tribunal should award to the claimant. The second part is called a 'remedy hearing'. The tribunal awards compensation on the basis of what it considers to be 'just and equitable' in the circumstances of the case in question. It is usually just and equitable for the tribunal to award loss of wages for the relevant period. It might be, say, six months between the dismissal and the tribunal hearing. If the claimant has not found another job at the date of the hearing you could have to pay, say, 6 months wages by way of compensation, plus the claimant can ask the tribunal to speculate on how long it will be before the claimant is able to find another job at the same of more money. The tribunal might say it could take another 6 months months to do this. In these circumstances, you could end up paying a year's wages (or even more) to the claimant by way of a compensatory award. That is the bad news. The good news is that all successful claimants are under a duty to mitigate their loss. This duty means the claimant must try and find another suitable job as soon as possible, otherwise the tribunal can reduces the compensatory award by whatever percentage the tribunal thinks is appropriate for failure to take reasonable steps to find new employment. If you can produce evidence by way of job adverts to show that alternative jobs, reasonably suitable for the claimant, were available, you could, perhaps, argue that the claimant could have got another job in, say, three months. If the tribunal agrees that this was likely the compensatory award might be based on three months wages instead of a year's wages.