Dealing with a Tribunal claim against your company can be a stressful and costly experience. In this article we provide some advice to assist employers who find themselves on the receiving end of such a claim.
A member of staff has been dismissed from your company following a disciplinary hearing. You might have hoped that their departure allows things to get back to normal but shortly afterwards you receive notification from the Employment Tribunals Service that your former employee has made a claim for unfair dismissal.
It’s a heart-sink moment for many employers and managers, particularly as the person making the claim may once have been a trusted member of staff - but you are not alone. Between 2008/9 and 2010/11, Employment Tribunals saw a 44% increase in claims, to 218,100. During 2010/11, 122,800 cases were dealt with - 33% more than in 2008/9. Among the most common claims were alleged breaches of the Working Time Directive, allegations of unfair dismissal and breach of contract.
Responding to a claim
Often, the first you will know about a claim is when the papers drop through your letter box. What you will receive is called a Form ET1 – that is the form the employee filled in to make their claim. You must prepare an official response to this form within 28 days and you can do this either in writing or online. The response is formally known as an ET3 and you will need to explain, among other things, whether you are resisting the claim and your grounds for doing so, and the procedures followed before the claimant was dismissed.
If you find you are unable to respond in time, it is possible to apply for an extension but the application must be presented to the Employment Tribunal Office within the 28 day time limit, explaining why you cannot comply with the time limit. It is up to the Employment Judge to decide whether this explanation is reasonable and whether to grant the extension.
Failure to provide all the requested information within the deadline and on the correct form can have serious repercussions. The Employment Judge may decide to issue a default judgment without you being able to play any part in the proceedings. A default notice may determine liability only or it may also quantify the remedy the claimant is entitled to. An employer’s only option at this point is apply for a review of the decision. A review hearing may then be heard and if the employer is successful, the matter can then proceed to a full hearing.
If the ET3 form is accepted, the claim then proceeds to the case management stage in which documents are exchanged and the date and length of the full hearing is listed. However, the current practice is to list the case and set out the information required when notifying the employer of a claim, to avoid the need for a case management hearing.
If a case management hearing is held, the claimant and respondent will usually agree when to exchange documents and witness statements. The Tribunal can also order either side to provide further information if necessary. As an employer, failure to comply with such an order can result in the Tribunal awarding costs against you, striking out whole or part of the response and where appropriate debarring you from responding to the claim altogether.
Employment Tribunals also routinely send the employer’s response to the Advisory Conciliation and Arbitration Service (Acas) which means an Acas conciliator may well contact you to see whether the case can be settled, i.e. the employer makes a monetary payment to the claimant in exchange for their withdrawing the claim, without the need for a hearing.
If the case does reach a hearing, this will usually be heard by an Employment Judge sitting alone although some more complex cases will be heard by a full Tribunal panel made up of a Judge and two lay members. Hearings are usually open to the public and can last anything from an hour to multiple days, during which the claimant, employer and their respective witnesses will give evidence under oath and answer questions, both under cross-examination from the other side’s representative and from the Employment Judge. At the end, the judgment and the reasons for it will be announced and a copy will be provided to both sides on the day or shortly afterwards.
If the claimant is successful, the Employment Tribunal can order you to pay them compensation. This can be unlimited in certain cases such as successful claims for discrimination but for a claim of unfair dismissal will generally consist of a basic award, based on the claimant’s age, length of service and pay, and compensation including loss of earnings up to a set maximum which is reviewed each year. In addition, if you are ordered to re-employ the claimant and you 'fail unreasonably to do so', a further award can be made against you. In general, both sides pay their own costs but the Tribunal can order one side to pay costs to the other if, for example, one side is thought to have behaved unreasonably.
Both sides can apply for the Tribunal judgment to be reviewed within 14 days of the date on which the judgment was sent. This can be done for specific reasons, such as that new evidence has become available since the hearing which could not reasonably have been known at the time. It is also possible to appeal the judgment of the Tribunal on the grounds that that the Tribunal has made an error in applying the law or ‘that the judgment was one which no reasonable Tribunal could have reached’. This must be done within 42 days of the date on which the written judgment was sent.
Professional help is at hand
Given that it can take months for a case to reach a hearing and the cost can be significant in terms of time, effort and disruption, it is important for employers to get the right advice as soon as possible. Our clients have access to a free 24 hour employment advice service. This provides:
• A help desk for immediate guidance on resolving all kinds of employment law dilemmas.
• Dedicated consultants with experience of employment legislation, contractual requirements and case law precedents.
• Help with drafting follow-up letters.
• Telephone coaching in managing tricky employee relations issues.
There are some practical steps that employers can take to help avoid a successful claim by a former employee. These include:
• Checking that disciplinary and grievance procedures for your staff comply with current employment legislation. Tribunals will take many factors into consideration when determining an unfair dismissal claim, including adherence to your disciplinary procedures and the extent of your administrative resources.
• Ensuring that staff who deal with employee matters are fully trained in your company’s disciplinary and grievance procedures. It is also essential that they understand employment law as it applies to your company.
• Keeping a record of emails, letters, minutes of meetings, statements and any other material which may be needed to substantiate your company’s decisions at a later date.
• Seeking to resolve disciplinary and grievance problems promptly in the workplace or consider using a mediator to help resolve disputes.
• If you receive a claim (Form ET1), seek legal advice straight away. Clients can call the employment law advice service on 0844 892 2772, quoting your Client Account Number.