Mark Stevens Don’t sit on your hands if a claim comes through: Prompt action may save you in the long run
Since 2013 most employees wishing to pursue an employment tribunal claim against their employer have to pay a fee to do so. So if your business receives an employment tribunal claim – an ET1 form – what steps should you take and what are the key points to bear in mind?
The priority is to make sure the response form is filled in smartly. Employers have 28 days from receipt of the ET1 to respond to the claim by filing form ET3 with the appropriate employment tribunal. The importance of meeting this deadline cannot be overstated. If you miss the deadline, the employment tribunal may enter a default judgment against you. The impact of a default judgment is that you cannot play a part in the claim or defend yourself. Extensions will only be granted by the employment tribunal where there are good grounds for doing so.
Employers should always check that the employee has submitted their case within the allotted time. The general rule is that an employee has three months from the termination of their employment to contact ACAS to initiate pre-claim conciliation regarding a potential unfair dismissal claim. If the worker is alleging discrimination, they have three months from the date of the alleged discriminatory act or the last event in a series of discriminatory acts about which they are complaining to contact ACAS regarding their complaint. For wages claims, a worker will have three months (less one day) from the date that the wages were due to be paid to contact ACAS. If the employee has failed to get their claim in before the relevant deadline then the employment tribunal will have no jurisdiction to hear the claim.
Some legal protections only apply to employees – for instance claims of unfair dismissal and for a statutory redundancy payment. Generally speaking, an employee can only pursue an unfair dismissal complaint against their employer once they have at least two years’ service with that employer, although there are important exceptions to this rule.
Make sure you know whom exactly the employee is trying to sue. It may that you have been incorrectly identified as the employer liable for the claimant’s claim – for instance as a result of a transfer when the business was taken over. If the claimant was engaged outside of England and Wales and has no connection with the UK, it may be that the employment tribunals don’t have jurisdiction.
Usually, the claims will be clearly set out on the ET1 form, but there may be further allegations included within any additional information attached to the ET1. Your defence should respond to each specific complaint that is being made.
Should the case proceed to a hearing, witness evidence will be required from those involved in the events giving rise to the claim. To be ready for this, and to accurately draft the defence, take initial statements from relevant employees. This is particularly useful when the events leading to the claim will be fresh and clearer in everyone’s mind. You should also begin to collate any relevant documents and put together your version of events and chronology. The disclosure process will require all relevant evidence to be sent to the claimant. For this reason, managers and employees involved should be told to preserve documents.
ALL COMES CLEAR
Sometimes an ET1 form – and the claims – will be unclear. If the ET1 is vague, part incomplete or contradictory then an employer could consider serving the employee with a request for Further and Better Particulars of the Claim. This will allow for specific questions to be put to the employee regarding the unclear parts of their claim. However, it can also give the employee a second opportunity to get their claim into shape.
TAKE LEGAL ADVICE EARLY ON
Taking legal advice at an early stage will ensure that you understand fully the claims being made against you, the required steps needed to comply with the employment tribunal’s rules of procedure and to help form a response and strategy to defend the claim. Inaccurately completing the ET3 response form – or failing to address something – is likely to cause problems later in the process, and could have expensive consequences at the employment tribunal hearing.
Settlement is always an option to consider – particularly if it appears that the employee has a good chance of a successful claim. Other factors to take into account when considering settlement will be the possibility of any adverse publicity, damage to reputation and the time and legal fees required to defend any claim. You can also consider contacting ACAS to help broker a deal.