How do I respond to an employment tribunal claim?

employment tribunal

Employers should respond to employment tribunal claims against them within 28 days of receiving a letter from the Tribunal. While tribunals are less formal than courts, they do have specific procedures that have to be followed if a claim is lodged.  Your initial response can have a big bearing on the success of your case.

From disputes around pay to dismissal and discrimination, employees can make a variety of claims against employers at Employment Tribunals.  

When the Employment Tribunal issues the claim, a copy of the claim will be sent to the employer to notify them and also to give the employer an opportunity to respond to the claim and defend themselves. 

In most cases, an employee or former employee cannot submit a claim to the Employment Tribunal unless they can show that they have been in contact with the Advisory, Conciliation and Arbitration Service (ACAS) to try and achieve “early conciliation”.  

To get help for your business with employment tribunal claims, visit raynerjones.uk.

Act as quickly as possible

As an employer, when you receive any correspondence from the Employment Tribunal about a claim made against you, you should act promptly. A late response may result in the tribunal ruling against you without a hearing.  

The employer has 28 days from the date the ET1 was sent out to respond.  The employer must respond using the prescribed form – ET3. This can be done online, by returning the response pack in the post or downloading and filling in a response form.

Assess the claim

An employment law solicitor can help you to decide if the case has any merits, carefully considering the strengths, weaknesses and best way to respond. At this stage you should be honest and make all documentation available to make your case as credible as possible.

 Identify the relevant issues

Make sure that as an employer you are fully aware of what the claimant is alleging.  Identify and focus on the issues raised, making sure you respond to all the allegations made.  If you do not address the specific claims made against the business you may not be able to raise them at a later date.

 Evidence- gathering and attention to detail

When dealing with the claims made you must ensure that the evidence you gather supports your responses.  Check the ET3 form to make sure that there are no omissions or glaring inconsistencies between your response and the evidence you are using to support your response.  Information in the ET3 should be factual, accurate and supported by the relevant evidence.  Focus on each allegation being made and respond to them all accordingly.

How to get the most out of early conciliation 

If an employee makes a claim against you, you should be contacted by ACAS.  ACAS will offer a conciliation process whereby they will work with the claimant and the employer to try and reach a settlement.

If you believe the employee has a valid claim, you can offer to settle the claim by paying compensation and finalising a settlement agreement.  ACAS conciliation settled 51% of cases it was involved with in 2019.  In order to make the most of the early conciliation you should:

  • Stay calm and don’t get emotional
  • Gather and provide relevant and accurate information
  • Make use of the ACAS conciliation officer who will have lots of experience in dealing with the process and acts as a neutral third party
  • Consider all possible outcomes (including settlement) before making any decisions

ACAS conciliators are there to facilitate conciliation, they are not permitted to take sides or advise you on the merits of the case.  Instead, they will explain the process, discuss the issues and options available to both sides, and talk through options to resolve the dispute. 

Any decision you make should be based on the needs of the business.  Not only should you consider the financial implications of going to the Tribunal, but you should also weigh up the time, costs, and reputational impact on the business of dealing with a claim that could take 12-18 months to resolve via the Tribunal.

What to include in your response to the employment tribunal claim 

Timings

There are various reasons an employment tribunal claim may be thrown out on technical grounds. The most common one being timings. You should check;

  • Dates of incident in question
  • The date the Claim was received by the tribunal
  • Dates on the ACAS early conciliation certificate

If the time limit for any of these dates has been missed, the Judge may decide that the Claim cannot continue.

Keep it vague

Documents, evidence and witnesses are all vital parts of your defence against a Claim. If you need time to ensure that these all support your case, then keep the story vague in your initial response. Changing the story may discredit your case.

Can you settle early?

When responding, you should make a decision on whether it makes commercial sense to settle early and offer the Claimant compensation. This could remove the distraction of the tribunal from senior managers as well as the time and costs of staff forced to focus on the tribunal.

A damage limitation argument may persuade the Claimant that it is not worth the hassle to go through with a hearing.  

Damaging documents

Is there anything that is likely to cause a problem at the hearing? Does the Claimant have access to any damaging emails, social media messages or text messages that support their case?

It’s important to be aware of these in your initial response so that you can work on limiting the damage.

Witnesses

Make sure you have good witnesses who can support your case or that you can teach them how to be good witnesses. Your preparations can come unstuck if you have poor witnesses who come across in the wrong way.

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