Tribunal claims are soaring, so get your ducks in a row for when it happens to you, says Andrew McGlashan. Here’s what you need to do.
Tribunal Services’ statistics for 2010/2011 show that employment tribunal claims were up 77 percent on 2008/2009. It’s clear that employees are far more willing to bring claims, which, in turn, means that you are now far more likely to receive one. But you can prepare for such a claim.
Timing
Generally an employee has three months from their termination date to bring most employment claims. In discrimination claims, however, it is three months from the date of the discriminatory act or the last event in a series of discriminatory acts about which they are complaining. For wrongful deduction claims it is three months less one day of the date that the wages were due to be paid. If the employee is out of time, your response should state that the employee is out of time and therefore the tribunal has no jurisdiction to hear the claim. However, you should note that the tribunal does have the discretion to extend a deadline, so make sure you also address the specific claims as a fallback.
Deadlines
You have 28 days from receipt of the ET1 tribunal form to respond by filing a ET3 form with the relevant tribunal. If you miss this deadline, the employment tribunal may enter a default judgment against you. On discovering a missed deadline, you should draft a response immediately and send it to the tribunal with an application for an extension of time, 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 receive written confirmation of the deadline for responding at the same time. Put the date in your diary so that you do not miss the deadline.
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; 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.
What’s the claim?
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 evidence
You should also 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 chronology
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.
Get 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. Whilst you may not want to pay the employee, doing so could make good commercial sense. Pursuing points of principle can be a costly luxury. If you are confident in your case, waiting until after you file your ET3 may be best. 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).
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