Employment Tribunal Advice for Employers

ACAS Early Conciliation

An employee must first notify ACAS that they intend to submit an employment tribunal claim through a process called Early Conciliation – if employer and employee are both willing to engage in ‘off the record’ negotiations known as Without Prejudice, then ACAS can facilitate this to agree Settlement Terms.

If neither party wish to engage in conciliation or if conciliation is unsuccessful, then the employee is issued an Early Conciliation Certificate. The employee is unable to proceed to tribunal without this.

Employee Submits a Claim – ET1 Form

If the employee wishes to pursue the claim they are required to complete a form called an ET1, which relates specifically to them being able to bring a claim against an employer.

This form must be submitted within time limits that will vary depending on the type of claim.

The form contains basic information such as:

• personal details of the employee (known as the claimant)
• details of the employer (known as the respondent)
• details of employment (dates, location, job role, etc)
• details of pay and benefits received
• details of the claim being made
• what resolution is being sought (such as compensation, reinstatement, etc)
• details of the claimant’s representative, if they have one

Claims are usually submitted online but can also be submitted by post or in person.

Employment Tribunal accepts the claim

There are only a few circumstances in which the Employment Tribunal will instantly reject an ET1 form; such as when the form used is incorrect or does not contain the required information, the Early Conciliation reference number has not been provided, or if the Tribunal does not have jurisdiction to hear the claim.

Otherwise, a case number will be allocated to the claim.

Employer notification and response – ET3

The employer, or respondent, is then notified of the claim. This will be in writing and usually to an address that the employee, or claimant, has stated on the ET1 form – see below to find out why this may cause difficulties.

The employer then has only 28 days to submit their defence to the claim on the required form, known as an ET3. In certain circumstances, an extension request may be granted, but each request will be considered on a case-by-case basis and results are not guaranteed.

Tribunal reviews the case

When all relevant documents have been received, an Employment Tribunal Judge will review the case to confirm whether the claims and defences are within the Employment Tribunal’s remit.

The Judge may dismiss all, or part, of a claim if they feel the Tribunal does not have jurisdiction, or the claim or response lacks what is known as “reasonable prospects of success.” The Judge will write to both parties explaining their judgement and the reasons for their decision, usually within a timescale that allows either party to make further written representations if they disagree with the judgement.

Preliminary Hearing / Case Management Order

It’s important to note that there are many variations on what might happen next, but normally a Preliminary Hearing will be scheduled at which both parties will receive the opportunity to outline any key outstanding issues to an Employment Tribunal Judge. The key issues of the case will be also be identified.

The Judge will then usually set what are called ‘Case Management Orders’. These are dates and deadlines that both parties must agree to before the case can progress to the hearing. These might include a date for exchanging evidence or witness statements, but, again, this will always be case-specific.

At the preliminary hearing, a date may be set for the full hearing of the case. Both parties and the Judge will also agree to the expected duration.

Preparation for the hearing

Both parties will use the interim to prepare for the hearing whilst following the case management orders set by the Employment Tribunal. This will include agreeing the ‘bundle’ – the documents that will be relied upon as evidence.

Employment Tribunal Hearing

Both parties – the employee/claimant and the employer/respondent – need to attend all the days of the hearing at the Employment Tribunal.

The case is usually heard by an Employment Tribunal Judge and two lay-members – usually, these will be individuals with a knowledge of employment law who have received special training to sit on an Employment Tribunal Panel.

Judgement

Depending on the length and complexity of the case, the Employment Tribunal may, after some time in deliberation, issue its judgement at the end of the hearing.

If time is insufficient, the judgement is usually issued to both parties, simultaneously, by post.

Remedies Hearing

If the Employment Tribunal decides to uphold the employee/claimant’s case, it will then progress to a Remedies Hearing, where both parties are able to communicate how they feel the case might best be resolved. This might be through reinstatement, reengagement (returning to the same, or a similar, job without loss of pay or continuity), or compensation.

One of the best methods of preventing claims from being made is to seek qualified, professional advice on your issues before they escalate.

Too often, we have seen employers breach the law where they have failed to seek legal advice and were unaware of the potential issues. They may, for example, have neglected to correspond with an employee on maternity leave regarding a redundancy procedure, or mistakenly assumed they didn’t wish to attend the associated meetings. In this case, their intense focus on the matters at hand has lead to their inadvertent exclusion of this employee, and this can be classed as discrimination under employment law.

Have robust policies – such as a dress code, and sickness and absence policy – in place, and ensure that your managers handle disciplinaries and grievances fairly and consistently.

It’s not unusual for us to find employers without any employment policies in place; where policies are provided, they are often outdated, misunderstood, or ignored by managers. This can lead to the dissatisfaction of employees, who then attempt to make a claim on the grounds that they have been treated unfairly.

Burying their head in the sand!

We can’t state this any clearer – DO NOT put off or avoid getting advice on a claim! Whether you’re anxious about the outcome, are hoping the employee will drop the claim, or have one of a number of other concerns, seeking legal advice should be your first port of call. Don’t fear if you do find yourself making these mistakes – we understand the pressures placed upon employers, and will always support you in the construction of a solid defence.

However, we are only able to defend your claim if allowed enough time to respond, or apply for an extension, within the 28-day deadline imposed by the tribunal. When it comes to seeking advice, sooner is always better than later.

Sending a claim to the wrong address

With claims involving companies with multiple sites, it’s not unusual for delays to be caused where the tribunal notification has arrived at an office not manned by senior managers.

If this has occurred, and you did not receive the form in time, you must urgently seek support in obtaining an extension or, if the response is out of time, in applying to overturn the default judgement, which is made automatically when no ET3 response has been given. The implementation of systems for reviewing mail and forwarding it the correct office is essential for preventing this situation.

In short: yes
If you wish, you may offer the employee/claimant compensation or reinstatement/reengagement at any point, but the employee must accept this offer.

Legal advice can provide useful insight into the potential risks of the case: the maximum amount of compensation that might be awarded to the employee/claimant if the case is successful; the potential commercial impact on the defending company, and whether a judgement against the company will be made on public record.

The amount of compensation will vary from case to case, and depend on numerous factors, such as the type of claim(s) brought by the employee, as well as the employee’s salary and if they have been able to secure other employment.

If settlement terms are agreed upon during ACAS Early Conciliation, it is then wise to seek advice on the COT3 terms or request that a solicitor drafts these for you. This is to ensure that they protect your company as efficiently as possible by removing the risk of future claims, preventing the employee from talking about the settlement terms, and including any other case-specific terms you may wish to include.

The team at Bridge are highly experienced, having assisted countless employers in combating the claims made against them. We will aid you in formulating a solid defence whilst clearly advising you and your team on the potential risks.

• Unfair dismissal following gross misconduct offences (including theft from employer – both property and data)
• Constructive unfair dismissal cases (particularly the removal of senior executives)
• Sexual harassment
• Wide range of discrimination claims, including maternity discrimination and disability discrimination
• Unfair dismissal claims following a redundancy
• Unauthorized deductions from wages
• Unfair dismissal following performance management/capability proceedings

Our approach to Employment Tribunal claims is commercial and pragmatic – if you simply wish to move forward from events as soon as possible by offering a settlement, we will negotiate the best possible deal for you, and do so on the basis of agreed terms that we can draft on your behalf.

If you have an insurance scheme in place with us, and have sought and followed our advice on matters, then your claim will likely be funded this scheme. Depending on the policy, you may need to pay the excess or VAT elements of the fees, but these can be reclaimed on your VAT submission.

If you aren’t signed up to our insurance scheme, check to see if your company provides a similar service through their insurance policy– again, you will usually pay excess and VAT, which can be reclaimed.

In the absence of any insurance you will need to fund the defence of the claim yourself. We are able to give clear estimates of fees at each stage of the claim and promise to discuss all fees clearly with you prior to them being incurred.

Offering an exact figure for the cost of defending a claim is difficult due to the overwhelming number of variables, among them: the history and context of the claim; the amount of witnesses involved; the amount of evidence/documents requiring review; hearing duration; and any other aspects of the procedure, such as extension applications.

We will, however, be able to offer a much more accurate cost estimate after reviewing the paperwork – namely, the ET1 and ET3 forms (the latter of which we will work with you to prepare.