Adam Bernstein explains why taking legal advice at an early stage will ensure an employer
understands fully the claims being made against them.

IF a dispute arises and mediation doesn’t work, the next step for an employee is to issue a claim in the employment tribunal. From July 2017, employees wishing to pursue a claim against their employer no longer have to pay a fee to do so. Employees will have welcomed this change, but to employers, a key disincentive for making claims was removed.

Periodically, the ministry of justice published the statistics for the number of employment tribunal claims received. In the most recent data, published 8 June 2023, between October and December 2022 the employment tribunal received 8,100 single claim receipts and disposed of 9,000 single claim cases. There were 37,000 single claim open cases at the end of March.

And for the quarter there were 15,000 multiple claim receipts, 11,000 disposals and the open caseload stood at 440,000 at the end of March.

And because employment tribunals transitioned to a new case management system in September 2022 cases in the new system aren’t included in the statistics above.
In other words, the tribunal system is very busy.

So, if an employer receives an employment tribunal claim – an ET1 form – what steps should they take and what are the key action points to bear in mind? Mark Stevens, a senior associate at VWV, sets out the areas to note when considering how to defend against an employee’s complaint.

Diarise the deadline to respond
The first thing Stevens says to check is the initial action required. He says employers have 28 days from receipt of the ET1 to respond to the claim by filing form ET3 with the appropriate employment tribunal.

‘The importance of meeting this deadline,’ says Stevens, cannot be overly stated. If you don’t comply with the deadline, the tribunal may enter a default judgment against you. ‘The impact of this is the employer can’t play a part in the claim or defend themselves.’ If goes without saying that this is best avoided if an employer wants to fight the case.

The deadline will always be clearly set out within the employment tribunal’s correspondence notifying an employer of an employee’s claim. Stevens says it may be possible to seek an extension to this deadline – for instance because a key individual involved in the case in out of the office on annual leave. To request an extension, the advice is to write to the employment tribunal, copying in the claimant, explaining why an extension is necessary.

Stevens warns, however, that ‘extensions will only be granted by the tribunal where there are good grounds for doing so; even when an extension is requested, employers should ensure the ET3 form is ready to go before the 28-day deadline to err on the side of caution’.

Check if the claim is in time
Speaking of deadlines, employers should always check that the employee has submitted their case within the allotted time. ‘The general rule,’ says Stevens, ‘is that an employee has three months from the termination of their employment to contact ACAS in order to initiate the pre-claim conciliation process required before an employee can bring an unfair dismissal claim.’

He adds that ‘if the worker is alleging discrimination, they have three months from the date of the alleged discriminatory act or the last event in a series of discriminatory acts about which they are complaining to submit their complaint to ACAS’.

Similarly, for wages claims, a worker will have three months from the date that the wages were due to be paid to contact ACAS.

It should be said that after the ACAS pre-claim conciliation process completes, a prospective claimant generally has a further month to present their claim to the employment tribunal.

Here Stevens points out that the tribunal will usually check that these deadlines have been complied with, but it’s always useful to check: ‘If the employee or worker has failed to get their claim in before the relevant deadline then the tribunal has no jurisdiction to hear the claim.’

Other checks
Some legal protections only apply to employees – for instance claims of unfair dismissal and for a statutory redundancy payment. On this Stevens comments that if a claimant is arguing unfair dismissal and they were engaged as a self-employed consultant, or a worker, then the employer should raise this in the ET3.

He says that ‘generally speaking, an employee can only pursue an unfair dismissal complaint against their employer once they have at least two years’ service with that employer, although there are important exceptions to this rule’.

Another question to resolve is whether the claimant pursued the right employer. It may that an employer has been incorrectly identified as being liable for the claimant’s claim – for instance as a result of a TUPE transfer. Also, a check should be made on whether the claimant has pursued claims in the correct jurisdiction.

As Stevens explains, ‘if the claimant was engaged outside of England and Wales and has no connection with the UK, it may be that the employment tribunals based in England and Wales don’t have jurisdiction to hear these claims’.

Lastly, it’s worth noting that claims should be clearly set out on the ET1 form, but there may be further allegations included in any additional information attached to the ET1. As a result, Stevens warns ‘any defence should respond to each specific complaint that is being made’.

Start collecting and preserving evidence early
Should the case proceed to a hearing, witness evidence will be required from those involved in the events and issues giving rise to the claim. To be ready for this, and to accurately draft the defence, Stevens says a key step in fighting the claim is to take initial statements from relevant employees.

He says ‘this is particularly useful when the events leading to the claim will be fresh and clearer in everyone’s mind. You should also begin to collate any relevant documents and put together your version of events and chronology’.

Notably, the disclosure process requires all relevant evidence – whether or not it’s helpful to the employer’s case – to be sent to the claimant. It’s for this reason, that Stevens recommends managers and employees involved should be told to preserve documents.

Allied to this is the fact that sometimes an ET1 form – and the claims set out within it – will be unclear. The employment tribunal sift process should give judges better opportunities to reject these claims before they reach you.

Regardless, he suggests that if the ET1 is vague, part incomplete or contradictory then an employer consider serving the employee with a request for Further and Better Particulars of the Claim. ‘This,’ he says, ‘will allow for specific questions to be put to the employee regarding the unclear parts of their claim.

‘However, employers should always think carefully – and take advice – before issuing a request for Further and Better Particulars. While sometimes this process represents a useful method of finding more out about an employee’s claim – it can also give the employee with a second opportunity to get their claim into shape’.

Consider settlement
In any dispute settlement is always an option to consider, particularly if in the context of an employment dispute it appears the employee has a good chance of a successful claim.

Beyond this, Stevens say other factors to take into account when considering settlement will be the possibility of any adverse publicity, damage to reputation and the time and legal fees required to defend any claim: ‘While you making a payment to the employee may be the last thing you want to do, an early settlement could make good commercial sense.’

As part of this, employers could consider contacting ACAS and ask the conciliator assigned to that case to assist them broker any deal they may wish to make. Stevens has seen this be particularly helpful in circumstances where the employee isn’t legally represented.

If a settlement is on the table, Stevens emphasises that if negotiations begin before the ET3 form is filed ‘make sure that an eye is kept on the upcoming deadline – if settlement negotiations break down or are not concluded before that deadline, you must ensure that you file the ET3 form to protect your position’.

Summary
Taking legal advice at an early stage will ensure an employer understands fully the claims being made against them, the required steps needed to comply with the Employment tribunal’s rules of procedure and to help form a response and strategy to defend the claim.

Inaccurately completing the ET3 response form – or failing to address something – is likely to cause problems later in the process, and could have expensive consequences at the Employment tribunal hearing.
Adam Bernstein is an independent columnist