Since the abolition of Employment Tribunal fees in July 2017, there has been a sharp rise (90%) in employees bringing claims against their employers. No longer deterred by these fees, employees want their day in court.

So, as an employer, what do you do if you receive an ET1 form from the Employment Tribunal? This is the form used by an employee to bring a claim against their employer. They are sent to you in the post from the Tribunal.

ACAS

Usually, you will have known that the employee was thinking of making a claim against you, either as they have said as much, or you are aware they are unhappy, or as ACAS have contacted you.

Before bringing a claim, an employee has to go through the ACAS Early Conciliation process. The employee has to speak to ACAS about what has happened and confirm whether or not they wish ACAS to contact you, the employer, to see if an early resolution can be found.  ACAS are neutral in this role – they cannot advise either party, but look for common ground to see if the claim can be settled. If a settlement can be reached, they help the parties record this in an appropriate agreement.

Before the claim is issued, it is up to the employee whether or not they allow ACAS to contact you about settlement. Because of this, sometimes claims can still appear ‘out of the blue’.

Time Limits

The first thing to do on receiving an ET1 form is to carefully check the letter that accompanies it from the Employment Tribunal. This will set out the date you need to file your response using the ET3 form. This is usually 28 days. This is a strict deadline and if you do not respond, the Tribunal may decide in favour of the employee even without a hearing, which can result in you paying the employee the sum of money they are claiming and cause adverse publicity.

Because of the strict deadline to respond, it is important that even during any business shut down or holiday period, someone is still checking the post. There is no defence for not responding because the office or business is closed.

Given the short timescales, you need to quickly decide how to deal with an ET1 form. If you think that you may have insurance to cover any claim, then you should notify your insurer as soon as possible. Similarly, if you wish for your response to be drafted for you by lawyers (as below), you should get in contact with them as soon as possible, to give the best chance of getting the best defence together in time.

Future Dates

The letter from the Tribunal may also include the hearing date. Diarise this and ensure that any potential witnesses are available. If anyone cannot make this date because of unavoidable commitments e.g. pre-booked holidays, then it is important to tell the Tribunal as soon as possible.

Also ensure that you diarise any case management orders that have been set; for example, the deadline to exchange witness statements or agree the list of issues. These things can take a long time to prepare so you will need plenty of notice of the deadlines. Non-compliance with any case management order can result in a number of penalties, including the strike-out of your response or a costs order being made against you.

Check the form

Although a very simple tip, be sure to thoroughly check the details that the employee has entered in the ET1 form. In particular:

  1. Your details – is the name of the employer properly included?
  2. Dates of employment
  3. Whether the employee is also making a claim against any of your employees
  4. The employee’s hours and earnings
  5. Whether the employee was paid notice and any other benefits.

Part 8 is where the employee should set out the details of their claim: sometimes these are set out in a separate document. The amount they are claiming will be in Part 9. Some employees send their schedule of loss at a later date, so you may not know exactly how much they are claiming at this point.

If the employee has instructed a representative, ensure that you send any correspondence to the representative rather than directly to the employee.

Evidence and Disclosure

Most importantly – do not destroy anything. If your CCTV cameras have caught the incident complained of, be sure to keep the recording – even if your policy is to delete records after a couple of weeks. It can be useful and may need to be relied on.

Ensure that the employee’s personnel file is up to date and you are able to locate their contract of employment. If there are any witnesses or other employees involved, be sure that accurate notes of events and discussions are taken. Memories fade over time, so get the details on paper sooner rather than later. You can add to it later once witness statements need to be produced.

In any claim, evidence will be important. You will need to disclose to the other side any documents or evidence that are relevant to the claim; even if the document is not favourable to your case. The same applies if the employee makes a data subject access request. These requests often come around the same time as a claim and need to be handled carefully to avoid complaints to the Information Commissioner’s Office.

Legal Representation

You can defend the claim without a solicitor, but there are a number of advantages in instructing our employment team at Stephens Scown:

  1. We have years of practice in successfully defending employment claims. We can advise you on the best approach and focus on the legal strengths of the claim, rather than just the facts.
  2. We can save you management time by doing the leg work for you. Defending a claim and producing all the documents and witness statements can be time-consuming, which may be time taken away from running your business.
  3. We can look at the merits of the employee’s claim and whether they are likely to be successful. If they are, we can assist in settlement negotiations and potentially save you the cost of defending the claim.

Remember that advice from a specialist lawyer also enjoys legal privilege, i.e. protected confidentiality. This means that your reactions to the claim and the advice we give does not have to be disclosed to the employee or the Tribunal. This is not the same for other HR professionals or consultants. We have seen many a defence unravel when those communications are disclosed to the other side.

Remember also that internal emails sent within the management team can also be used at Tribunal or obtained via a data subject access request – these are not protected by legal privilege. Be careful what you say and if you want to talk freely, do so to a lawyer.

 

The Stephens Scown employment team works in partnership with organisations to improve their HR practices and advise individuals on employment issues. To discuss an employment tribunal claim or any other HR issue call 01392 210700 or employment@stephens-scown.co.uk.