A Comprehensive Guide to Defending a ET Claim
A Comprehensive Guide to Defending a Employment Tribunal Claim
Navigating an Employment Tribunal (ET) claim can be a daunting process for any employer. From the moment you receive an ET1 form to the potential final hearing and beyond, understanding the intricacies of employment law and procedure is paramount to a successful defence. This in-depth guide provides crucial insights and practical advice, serving as a robust resource for employers faced with tribunal proceedings.
Initial Steps Upon Receiving an ET1
When an ET1 claim form arrives, it marks the formal commencement of proceedings against your organisation. Your immediate focus should be to meticulously assess the nature of the claims, determine the applicable time limits for your response, and confirm the tribunal’s jurisdiction.
Ascertaining the Claims: The ET1 will outline the claimant’s grievances, which could range from unfair dismissal, constructive dismissal, and unlawful deduction from wages to various forms of discrimination (e.g., disability, race, sex) and whistleblowing claims. Each type of claim carries distinct legal tests, qualifying periods, and potential remedies. For instance, unfair dismissal claims typically require the employee to have a requisite period of qualifying service, while discrimination claims do not. Identifying the specific claims allows for tailored advice and defence strategies.
Early Conciliation (EC) Compliance: Most ET claims, including those for whistleblowing detriment and unfair dismissal, are subject to mandatory Acas Early Conciliation. An ET claim cannot generally be submitted without an EC certificate, unless an exemption applies.
Establishing the Limitation Date: Strict time limits govern the presentation of claims to the ET, typically three months from the date of the act complained of. For respondents, the deadline to submit the ET3 response is 28 days from the date the tribunal sent the claim form. Missing this deadline risks a default judgment against your organisation. Extensions are possible if it was "not reasonably practicable" to present the response in time, or, for discrimination claims, if it is "just and equitable" to do so. However, tribunals generally expect parties to be aware of time limits; ignorance is not always deemed reasonable.
Jurisdiction: Ensure the claim falls within the ET’s jurisdiction. For example, breach of contract claims exceeding £25,000 cannot be heard by the ET. Issues of territorial scope also arise if either party is based overseas. An ET is considered a "court" for certain statutory purposes, such as ordering specific disclosure of material in discrimination claims.
Strategic Assessment: Prospects, Quantum, and Costs
Before drafting a response, a thorough strategic assessment is vital. This involves evaluating the claim’s prospects of success, the potential financial exposure (quantum), and the likely legal costs.
Prospects of Success: This assessment should consider the available documentary and witness evidence, the credibility of your witnesses, and whether your organisation complied with relevant codes, such as the Acas Code of Practice on Disciplinary and Grievance Procedures. For whistleblowing claims, the claimant must prove they made a protected disclosure and suffered a detriment, after which the employer bears the burden of proving the reason for the treatment. In automatic unfair dismissal claims, the burden remains on the employer to show a potentially fair reason for dismissal.
Assessing Quantum: Claimants typically submit a schedule of loss. You should estimate potential compensation based on salary and benefits, considering that compensatory awards for unfair dismissal are often capped, except in cases like whistleblowing or health and safety dismissals. Discrimination and whistleblowing detriment claims, however, are uncapped and can include awards for injury to feelings and personal injury. Awards for injury to feelings are assessed using the Vento bands.
Legal Costs: Unlike civil courts, costs do not automatically "follow the event" in ETs; they are "the exception rather than the rule". However, costs can be awarded where a claim or response has been "unreasonably brought, conducted or defended," or if it had "no reasonable prospect of success". Examples of unreasonable conduct include dishonest evidence, vexatious behaviour, late withdrawal of claims, or refusal of a reasonable settlement offer. Tribunals may also consider the imbalance of experience between parties, especially when a litigant in person is involved. Failure to follow the Acas Code may also affect costs. It's crucial to inform clients about potential legal costs and funding options. Be wary of AI-generated legal authorities, as they have been found to be fabricated and can lead to serious issues.
Crafting Your Defence: The ET3 Response
The ET3 form is your formal response. While some judges caution against overly narrative pleadings, ensure all relevant facts are captured accurately and succinctly. Attach separate "Grounds of Resistance". We can help draft this if needed. If the claimant submitted discrimination questions, ensure your ET3 is consistent with any previous answers.
Case Management: Preparing for Hearing
Once the ET3 is submitted and accepted, an Employment Judge will review the case in a "sift" process, deciding on preliminary issues like strike-out applications or case management directions.
Identifying the Issues: Work with your client to narrow down the core factual and legal issues in dispute.
Information Gathering and Disclosure: Collect all relevant information and documentation, including claimant’s salary and benefits data. Maintain comprehensive records and be mindful of your ongoing duty of disclosure.
Witness Statements: Prepare detailed witness statements from individuals with first-hand knowledge of the events. Statements should be in the witness's own words and refer to relevant documents.
Interlocutory Applications: If necessary, make formal applications for specific orders from the tribunal. Common applications include:
Strike-Out: Seeking to dismiss all or part of a claim/response that has no reasonable prospects of success or is an abuse of process. While high-bar for discrimination and whistleblowing claims, it can be a strategic move.
Deposit Orders: Requiring a party to pay a deposit (up to £1,000) if a claim or defence has "little reasonable prospect of success".
Amendments: Seeking to amend a claim or response.
Postponements/Adjournments: Requesting a delay to the hearing.
Witness Orders: Compelling a witness to attend the hearing.
Seeking Resolution: Settlement
Most ET claims settle before a final hearing. Settlement discussions can be facilitated through Acas early conciliation or judicial mediation. If terms are agreed, they are typically recorded in a settlement agreement or a COT3 form. Be aware of claims that cannot be compromised by a settlement agreement.
The Final Hearing: Presenting Your Case
Preparation is key for the final hearing. This includes compiling the hearing bundle, a chronology of events, a "cast" list of key individuals, and a skeleton argument. Ensure a comprehensive note is taken during the hearing, capturing tribunal observations and witness testimony.
Post-Hearing: Judgment, Remedies, Costs, and Appeals
Judgment and Remedies: If the claim is upheld, the tribunal will issue a judgment and may award compensation, declarations, or recommendations. Compensation can cover various losses, including loss of earnings, personal injury (e.g., psychiatric illness from employer's actions), and injury to feelings. For whistleblowing, compensation is uncapped.
Costs Orders: As discussed, costs are typically awarded for unreasonable conduct or claims with no reasonable prospects of success. Tribunals have wide discretion, and factors like the party's ability to pay are considered. Costs warnings may be issued, but are not a precondition for an order.
Appeals: Either party may appeal a tribunal’s judgment to the Employment Appeal Tribunal (EAT) on a question of law. Appellate bodies are generally cautious in overturning tribunal decisions, especially on factual findings, as long as the correct legal principles were applied.
Key Takeaways for Defending an Employment Tribunal Claim:
Proactive Assessment: Act swiftly to understand the claims, deadlines, and jurisdictional aspects.
Strategic Planning: Evaluate prospects of success, financial exposure, and legal costs before deciding on a defence strategy.
Thorough Preparation: Meticulously gather evidence, draft statements, and consider all potential interlocutory applications.
Focus on Causation (where relevant): Be ready to establish the true reason for any action taken against the claimant, especially in discrimination and whistleblowing cases where the burden of proof may shift.
Consider Settlement: Explore early conciliation and mediation as avenues for resolution to mitigate costs and risks.
Understand Costs Rules: Be aware of the circumstances that can lead to a costs order and the importance of clear communication regarding legal expenses.
Embrace Professional Advice: Employment law is complex; engaging experienced legal professionals is invaluable.
By adopting a robust and informed approach, employers can significantly strengthen their position when defending against an Employment Tribunal claim. We can help defend your case.
