Defending Employment Tribunal Claims for Employers
Here are some helpful tips for you when you receive an employment tribunal claim, the tips come from our specialist legal team.
Before we explore those tips, it’s worth noting how we help employers across the UK to defend Employment Tribunal claims in all UK business sectors and sizes, from Plc’s to SMEs – so do please contact us, we are always happy to discuss potential support, we make a positive difference. We can quickly and cost effectively assess the risks, costs and defence process and strategy for you. Both employment law and particularly tribunals are complex, to avoid costly claims, obtain quality advice and get in touch, there’s no obligation! Here’s an example of what our clients say:
Contact us today for a free telephone consultation on 01904 360295 or contact us online.
We cover Employment Tribunal work across the UK from offices in Leeds, London, York and Hull
1. Check the Notice of Claim for your ‘Response Date’
As the Respondent to the Employment Tribunal claim you will normally have 28 days to consider the claim and then lodge your Response (Form ET3) and your Grounds of Resistance (the detailed legal basis of your defence) at the Employment Tribunal.
The notice of claim and related documents will make that deadline date very clear, do make sure you diarise that date, it is absolutely vital the Employment Tribunal receive your Response on time, so don’t post it, email it all to the correct Tribunal office with the correct case reference number.
If you miss that date you may have a Default Judgment entered against you providing only a very limited means of contesting the claim under the employment tribunal rules, from thereon, and with limited legal arguments available to justify setting aside any such Default Judgement too.
Whilst we have successfully set aside default judgments, we can often help with that – BUT don’t miss the date.
2. Check the time limits, has the Claimant complied?
Check the date the claim was issued – why?
There are complex rules regulating time limits for claims to be issued, if the employee gets that wrong, we can often apply to the Employment Tribunal Judge to strike the claim out for you, saving you time and money.
In general, however, the employee has three months less a day from their effective date of termination (which also has complex rules to establish the last day of work) to issue their claim, plus most of the time spent in conciliation with ACAS – because these rules are a little tricky, this issue always warrants a thorough review from the outset.
Our team have saved companies and business owners thousands in defence costs and claim values by carefully spotting and analysing these technical points early and successfully applying to strike out claims.
Some other technical points to check and consider here can include: –
If not, it may be that the Claimant has failed to conciliate their claim prior to issue, again, that can be very useful for employers – Employment Tribunals may reject a claim without the correct conciliation certificate or process.
Some claims, like a standard unfair dismissal claims under the Employment Rights Act 1996, require two years continuous service for an employee to bring them, if they don’t have that, they are barred from making such claims.
Other claims, like discrimination claims under the Equality Act 2010, or, ‘whistleblowing’ claims (e.g. where an employee suffers poor treatment by the employer because they disclosed breach of compliance obligations i.e. health and safety breaches by the employer) made pursuant to the Public Interest Disclosure Act – these don’t require two years’ service.
If not, a strike out application may be required there too, for example, discrimination claims can be evidentially complex to make out and in many cases, they just don’t pass the requisite legal test.
Whilst Employment Tribunals can be reluctant to award costs orders against Claimant’s and their representatives, they can and do in very specific circumstances set out in the rules that govern the Employment Tribunal and conduct of cases, for example, costs applications made in the correct form and process, can be considered where, generally speaking, the Claimant’s claim is legally misconceived or where their conduct is vexatious or very unreasonable.
The are many legal and procedural pre-requisites that claims must satisfy to proceed and that can be relied upon in defence, thus, a very careful legal analysis of the:
- procedural;
- legal; and
- commercial;
……..aspects of the claim and defence of it are essential to protect the Respondent employer from the outset.
3. Gather the facts and assess whether to defend or use ACAS again
To ensure you and the business you serve understand fully what the claims mean to you, it is crucial you undertake a detailed assessment of the following: –
…..is it a legally valid claim?
Gather the papers and facts now to assess the legal viability of the claim, written evidence can make or break a claim, also, when you seek advice from our specialist team your correspondence is legally privileged, much of it cannot be used against you, so do be very careful what you say in internal communications about the claim and issues and please note that legal privilege protection does not apply to consultants, thus, any consultant’s notes and advice is essentially evidence that can be used against you.
…..what is it worth? What is the worst case compensation scenario if you lose?
This is absolutely crucial to know early on as part of your business risk analysis, financial budgeting and negotiations too, this is what we do at the outset. You can build a fence at the top of the cliff now or take the legal ambulance at the bottom!
…..would a public Employment Tribunal hearing and Judgment affect your business relationships and contracts?
Remember the outcome will be made public. Would it risk costly negative PR or harm the business in any way?
Are there any wider consequences – for example, alleged breaches of the NMW ‘naming and shaming’ can have very serious consequences in many sectors. Or would settling set a precedent for others?
These are all important commercial risks we help clients assess and map out from day one, creating a defence and sometimes exit or information management strategy too.
Only when you have this complete assessment and picture can you really make a clear, legal and commercially based decision as to what is in the best interests of the Company.
Remember, ACAS are still available and you can seek to settle claims at any point, however, it is crucial you know legally what it is you are settling and what it is worth and whether or not you should indeed do so – that legal assessment can save money and sometimes avoid claims altogether.
BRIDGE – Let us help?
We pride ourselves on our ability to help and make a difference.
We are all qualified, specialist and experienced Solicitors and we can help you successfully defend a claim.
We give you very clear commercial and legal support early on, to help you ensure you know exactly what you are getting into.
We also help you free up time to progress your business priorities whilst we lead your defence strategy for you.
We are very happy to take no obligation calls in confidence to see if we can help you in a way that suits your needs.
We also provide clear fixed range costs assessments for your defence at each stage.
Get In Touch Today
BRIDGE combines 25 years of proven expertise in employment law and advice tribunal advice.
Contact our national team of employment law experts for a free no obligation legal advice chat to discuss how best to respond to any Employment Tribunal Claim.
Call us on 01904 360295 or contact us online.
We have offices in Leeds, London, York and Hull and our team cover Employment Tribunal work across the UK
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