Avoiding and Preparing for an Employment Tribunal

Employment Tribunal claims are continuing to rise since the requirement to pay a fee to bring a claim was removed in July 2017. Employment Tribunal claims present a risk to any employer , however robust the defence may be. They can be very time-consuming, costly and challenging.

Employers, whether facing an Employment Tribunal claim for the first time, or those who have been through the process before, are likely to require assistance in navigating their way through the litigation process. It is important to act quickly, gather relevant evidence and comply with tribunal deadlines to put your organisation in the strongest position to defend a claim.

Below is part one of a comprehensive guide for businesses facing Employment Tribunal claims. Part one will cover steps employers can take to avoid and prepare for Tribunal claims including responding to a claim, Acas conciliation, disclosure, limitation periods and steps that can be taken if you miss Tribunal deadlines.The Employment Tribunal system has primary responsibility for workplace justice and is the main forum for deciding disputes between employees and employers. Employment Tribunals are governed by a specific set of rules, practice directions and procedures for dealing with cases and appeals. Claims in Employment Tribunals differ from the Civil Courts in their process, but decisions from the Employment Appeals Tribunal may be appealed to the Court of Appeal and beyond on a point of law.

The type of cases heard in Employment Tribunals include claims about unpaid wages or holiday pay, claims of unlawful discrimination, harassment and/or victimisation, unfair dismissal and redundancy claims, and claims of detrimental treatment following protected disclosures (“whistleblowing”). In most cases the claim is for monetary compensation, but Employment Tribunals can in certain cases order reinstatement or re-engagement.

At Geldards we aim to make the Employment Tribunal process as painless as possible, assisting you at each stage of the process and providing you not only with legal advice but also commercial and practical advice on your options and strategy.

How can we avoid an Employment Tribunal claim?

There are a number of steps employers can take to mitigate the risk of Employment Tribunal claims, including:

• • Communicating effectively with your employees (or relevant Trade Union) and consult with them on any changes which may affect them.
  • Regularly reviewing policies and procedures to ensure compliance with best practice and current laws;
  • Providing clear terms and conditions in Employment Contracts and avoiding ambiguous clauses as well as ensuring any changes to those terms and conditions are documented;
  • Training all employees at regular intervals on standards and behaviours expected at work. Providing bespoke training to managers on effective management and on dealing with workplace issues to ensure they can identify and deal with potential issues before they become problematic.;
  • Taking HR and/or Legal advice early on with the aim of resolving situations before they escalate;
  • Managing capability and poor performance issues proactively as they arise. Ensuring employees are aware of their targets and objectives and how they can achieve them. Escalating any matters which cannot be resolved through an appraisal system in a timely way.
  • Considering flexible working requests in a reasonable way and not rejecting them without a business rationale.
  • Being mindful of making reasonable adjustments for employees with disabilities.
  • Handling workplace sickness sensitively while an employee is off work and when they return to work.
  • Ensuring you have clear disciplinary and grievance procedures which you follow with meetings and outcomes documented.
  • Taking steps to ensure any redundancy process is followed, fair and objective selection criteria are used and consultation is meaningful.
  • Where possible consider requesting volunteers and ensure any affected employees are offered suitable alternative employment.
  • Taking legal and HR advice before conducting any protected/without prejudice conversations.
  • Using settlement agreements if you make any non-contractual/ex gratia offers to settle disputes.

How will we know a claim has been brought against us?

A claimant must present their claim to the tribunal within the relevant time limit using an ET1 form (also known as a “Claim form”). Once an ET1 form is received by the tribunal, they will check it to ensure it meets the minimum requirements of a valid claim. If a tribunal rejects a claim, the ET1 will be returned to the claimant with a notice of rejection.

Where a tribunal accepts a claim it will send to you a copy of the ET1 form accompanied by an ET3 form to be used to submit a response and a notice explaining whether any part of the claim has been rejected, how to present a response to a claim, the time limit to respond and what will happen if a response is not received in the time limit.

The ET1 form and accompanying documentation will be sent in hard copy to the address provided by the claimant for the employer. Be aware therefore that if you have multiple sites and/or a registered office for your organisation, that the ET1 form could be sent to any of these depending upon the address provided by the claimant.

When do we have to respond to a claim?

You must present your response to the tribunal within 28 days of the date on which the tribunal sent you the ET1 form – be aware it is not 28 days from the date you receive the ET1 form. The correspondence from the tribunal will specify the deadline for submitting the response. Due to postal delays this may mean you have less than 28 days to respond.

You must comply with the deadline set out in the letter from the tribunal or a default judgment against you may be issued by the tribunal.
If you are unable to submit your response within the specified deadline, you can apply for an extension of time to do so but there is no guarantee that this will be granted.

What is the ACAS Early Conciliation process?

In the vast majority of claims, claimants must contact Acas before making a claim to an employment tribunal.

The claimant will be offered early conciliation, a process where Acas talk to both you and the claimant to give parties a chance to come to an agreement without having to go through the Employment Tribunal process. It is for both parties to decide whether they want to participate. All conversations are confidential.

If the claimant decides they do not want to participate in early conciliation you may not be aware of the claim until you receive the ET1 form.
If conciliation is entered into by the parties but ends without an agreement an early conciliation certificate is issued and the claimant has at least a month from the date of the certificate to make a claim to the tribunal. Be aware that the early conciliation process can extend the limitation period for the claimant to bring a claim (see below).

What are limitation periods?

Limitation periods are the time limits in which a claimant can make a claim to an employment tribunal. In most types of claim, the claimant has 3 months less 1 day from the date of the matter complained of, whether this is a termination of employment or an alleged act of discrimination. However, some discriminatory acts may be pleaded by the claimant as a continuing course of conduct in which case the limitation period is measured from the final act in the course of conduct.

Claimants are able to make applications to the tribunal to extend the limitation period for presenting a claim, for example because they only became aware of the discrimination later on or because it is fair in the circumstances to do so.

Failure to adhere to the limitation period can used as a means of getting a claim struck out so it is always worth getting legal advice early. The Employment Team will be happy to assist if you get in contact with them.

What happens if I’ve missed the limitation period or the deadline to file a response?

Depending on whether or not you are making or defending the claim, it is important as we’ve outlined above that you comply with any limitation date (to make a claim) or deadline (to respond to the claim).

If you miss these deadlines then there can be very serious consequences. The claim can be struck out if the claim is lodged outside the limitation period or the Employer may be precluded from taking part in defending the claim if the response deadline to the ET3 has not been met.

However, there are situations when a claim which has been lodged late is permitted to proceed if there are good arguments why it was not presented in time. For example a tribunal has jurisdiction to extend time in discrimination cases if it is “just and equitable” to do so and in unfair dismissal claims if it was not “reasonably practicable” for the claim to be presented in time.

Where a defence is filed late then a tribunal can allow the defence to proceed where this is in the interests of justice. Making these applications to the tribunal is not a straightforward process and it is very important to be able to construct as robust an argument as possible to persuade the tribunal to extend time. If you find yourself in this situation we can assist.

What is disclosure?

Disclosure refers to the stage of the litigation process when the parties are required to disclose to each other documents that are relevant to the dispute. Disclosure enables the parties to obtain from each other documents relating to the dispute that might not have otherwise been given voluntarily. It requires all relevant documents, other than those covered by legal privilege, to be disclosed, whether these are detrimental or helpful to your case.

The documents that are disclosed by the parties will then form basis for the bundle of documents that will be provided to the employment tribunal panel for consideration as evidence in the case.

Does a Claimant have to pay to lodge an Employment Tribunal claim?

Since July 2017, claimants do not have to pay a fee to bring a claim to an employment tribunal. The removal of the fee has resulted in an increase in claims.

How long will an Employment Tribunal claim take to get to hearing?

If your claim is not settled and proceeds to a final hearing, your case is likely to be listed somewhere between 26 – 52 weeks from the claim being lodged. However, this can vary considerably from tribunal to tribunal depending upon the caseload and resource of the particular tribunal.

We hope you have found this guide useful.

Part two of this guide will be available soon and will cover managing the Employment Tribunal process including preparing a witness statement, attending as a witness, receiving judgement, legal costs, winning and losing a Tribunal claim and settlement.

We will be hosting a two part ‘Power Hour’ webinar in which we discuss the content of these guides. If you have any questions in relation to avoiding, preparing for or defending an Employment Tribunal claim, please contact the Employment Team or attend the ‘Power Hour’ webinars and we will be happy to help.

As a team, we have significant experience in managing tribunal litigation. As indicated at the outset our aim is to make the tribunal procedure as painless as possible for you, guiding you step by step through the process from beginning to end. If you have any questions in relation to avoiding, preparing for or defending an Employment Tribunal claim, please contact the Employment Team and we will be happy to help.

To watch both our webinars “A Guide to Employment Tribunals” please click HERE