Employment Advice for Employers

1. Initial Considerations

Upon receiving a claim, take these first steps:

• Confirm Instructions & Provide Information: Clarify the scope of work with your client, including costs, prospects of success, quantum, and settlement options.

• Diarise Deadlines: Note the response deadline for the ET3 and any case management or hearing dates.

• Ascertain Claims: Clearly understand the nature of the claims being made, even if they are not immediately clear from the ET1.

• Check Early Conciliation Compliance: Verify if the claimant complied with Acas early conciliation requirements.

• Establish Limitation Date: Determine if the claims were brought within the specified time limits.

• Check Eligibility Requirements: Ensure the claimant meets the eligibility criteria for their claims (e.g., employment status, length of service).

• Consider Jurisdiction: Address any cross-border or jurisdictional issues.

• Gather Information & Documentation: Collect all relevant information and documents from the client, including salary and benefits data for quantum assessment.

2. Drafting the ET3 (Response)

The ET3 form is your formal response to the claim.

• Use Standard Form: The ET3 form is available from the government website.

• Drafting Style: Aim for a clear, succinct, and accurate response, distilling relevant factual matters to their essential points. You can attach separate Grounds of Resistance.

• Consistency with Discrimination Questions: If the claimant submitted discrimination questions, ensure your ET3 response is consistent with previous answers or explains any differences.

• Submission Deadline: Submit the ET3 within 28 days of receiving the claim form. Failure to do so risks a default judgment.

• Extension of Time: If needed, apply promptly for an extension of time to submit your response.

3. Advising on the Defence

Provide comprehensive advice on the prospects of success and potential quantum.

Assessing Prospects of Success:

• Legal & Factual Issues: Understand the core issues in the claim and defence.

• Timeliness & Eligibility: Reconfirm if the claim was brought in time and if the claimant is eligible.

• Evidence Support: Does your documentary and witness evidence support your case?

• Witness Credibility: Will your witnesses be credible and available?

• Acas Code Compliance: If applicable, was the Acas Code of Practice on Disciplinary and Grievance Procedures followed?

• AI Risks: Be aware of the risks of using AI for case preparation, as it can generate fabricated authorities.

Assessing Quantum (Compensation):

• Review Schedule of Loss: Carefully check the claimant's schedule of loss. Consider serving a counter-schedule if there's a significant dispute.

• Estimate Exposure: Make a reasonable estimate of the claimant's likely compensation if they win, considering statutory caps and formulas.

• Mitigation: Consider arguing that the claimant failed to adequately mitigate their loss to reduce potential compensation.

Employers' Contract Claims:

• Employers can bring certain contract claims against claimants if the claimant has brought a contract claim against them.

4. Tribunal Process Stages

Understand the various stages of the tribunal process.

• Sift Stage: An employment judge reviews the claim and response to determine if any part should be struck out or if case management directions are needed.

• Case Management Orders: The tribunal issues directions for preparing the case. Ensure compliance and liaise with the claimant's representative for any variations.

• Preparing the Case:

• Identifying Issues: Review the ET1 and ET3 to determine legal, factual, and jurisdictional issues. Prepare an agreed list of issues with the claimant's representative.

• Identifying Witnesses: Determine and secure the availability of relevant witnesses who can defend the claim.

• Interlocutory Applications: Make formal applications for specific orders from the tribunal before the final hearing.

• Preliminary Hearings: These interim hearings can be for case management or to determine preliminary issues (e.g., jurisdiction, strike-out applications).

• Disclosure and Inspection: Both parties must disclose all relevant documents in their possession or control. Prepare chronological lists of documents and exchange them.

• Witnesses: Prepare detailed written witness statements from all your witnesses. Exchange these statements with the claimant. Review the claimant's witness statements for new issues or inconsistencies.

• Expert Evidence: If required (e.g., for disability claims), expert evidence is usually instructed jointly by the parties.

• Documents: In addition to witness statements, prepare a schedule of loss (if applicable), mitigation evidence, and other documents like a list of issues, chronology, or "cast" list.

5. Settlement

Many claims settle before the final hearing.

• Negotiation: Settlements can be negotiated directly, through Acas, or via mediation (including judicial mediation).

• Formal Agreement: Agreed terms are recorded in a settlement agreement or a COT3 (if Acas assisted).

• Withdrawal: Ensure the claimant formally withdraws their claim in writing as a term of settlement.

6. The Final Hearing

If your claim proceeds, it will be heard at a final hearing.

• Preparation: Update witness statements with bundle page numbers, prepare instructions for counsel, and ensure all documents are in order.

• Attendance: Ensure witnesses and representatives arrive early, are familiar with documents, and understand their duties (e.g., not discussing the case while under oath).

• Preliminary Issues: Raise any preliminary issues with the tribunal at the start of the hearing.

• Note Taking: Take comprehensive notes of the hearing, including witness evidence and tribunal observations.

• Witness Evidence: Be prepared for examination-in-chief, cross-examination, and re-examination of witnesses.

• Settlement Discussions: Be open to settlement discussions, which can occur during the hearing.

7. Judgment, Remedy & Beyond

• Judgment and Reasons: The tribunal will issue its decision. If unsuccessful and considering an appeal, request written reasons within 14 days.

• Remedy: If the claimant is successful, the tribunal will determine compensation or other remedies. Be prepared to deal with remedy at the same time as liability, or at a separate remedies hearing.

• Reconsideration: If you disagree with a judgment, you can apply for reconsideration "in the interests of justice" within 14 days.

• Appeal: Information on appealing an employment tribunal judgment to the Employment Appeal Tribunal (EAT) is available.