Employers Questions - Employment Tribunal Claims

Q1: I have received a letter from the Employment Tribunal stating that a former employee has made a claim against the Company (an ET1). What should I do?
Q2:What information should be given in the employer's response (the ET3)?
Q3: Can I admit a claim raised in an employee's tribunal application or ET1?
Q4: What happens to my case after I respond to an employee's ET1?
Q5: What will happen at the hearing? Will I have to give evidence?
Q6: What damages will I have to pay if I lose?
Q7: I realise that success can never be guaranteed when defending a case at the Employment Tribunal but what can I do to increase my chances?

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If you require legal advice on this or any other employment law issue, please contact Tony Hyams-Parish or your usual contact in the employment team at Rawlison Butler LLP.

This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this document.

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Answers to questions below, please click on the questions above to be directed to the correct answer.

A1: This means that your former employee is taking legal action against you about something relating to his/her previous employment with the Company. What you have received is a claim form commonly referred to as an ET1. The ET1 will have been completed by the employee or his/her legal representative. As well as providing general information on dates of employment, salary etc it will give details of the employee's claim, such as whether it is for unfair dismissal, breach of contract, sex discrimination or some other claim.

If you receive an ET1, it is essential that you act quickly and obtain legal advice. There are strict time limits by which a response to an ET1 must be submitted. Currently, this is 28 days from the date the form was sent to you by the Employment Tribunal. It is possible in some circumstances to extend the time period within which to respond but an extension cannot be guaranteed and therefore you should respond within the time limits wherever possible.

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A2: An employer should respond to an ET1 on a form known as an ET3 or Response form. On the ET3 you should respond to each and every allegation made by the employee. Quite how detailed you make the ET3 is often a question of judgment. If you miss out important information that you later wish to rely on at the hearing, the employee may attempt to use this against you in proving his/her case. Equally, you should be cautious about providing too much detail, particularly if there are doubts as to whether you can back the claims up with evidence later on.

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A3: Technically you can but it is rarely advisable and you should seek legal advice before doing so. The consequences of you admitting a claim will be that the Employment Tribunal will simply proceed to consider the question of damages in relation to that claim. It will be difficult to change your mind later on if you subsequently decide that you want to defend the matter.

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A4: Once you submit your ET3 response, the file will go to an Employment Tribunal Chairman to consider whether any specific directions need to be given on the conduct of the case prior to a hearing. In a straightforward unfair dismissal case some Tribunals issue standard directions requiring, for example, the parties to exchange documents that they intend to rely on at the hearing and prepare and serve witness statements within a stipulated time frame. In more complicated cases, such as those involving discrimination claims, a range of other directions may well be given. The Tribunal Chairman will also allocate a date for the hearing.

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A5: Any person that has provided a witness statement in the case will need to be available to give evidence. Precisely who gives evidence will be something that you should seek legal advice on. In an unfair dismissal case, the person who took the decision to dismiss will most certainly need to give evidence. However, other witnesses are often required in order to maximise the chances of successfully defending the case. In an unfair dismissal case it is generally the employer's witnesses who give evidence first. This is followed by cross examination by the employee or his/her legal representative. Afterwards, the employee will give evidence, followed by cross-examination. It is usual for the Tribunal to ask questions as well.

Once the evidence is heard, both parties' representatives can make a closing speech and the Tribunal will then consider its decision. If the employee is successful, the Employment Tribunal may proceed to consider the question of damages straight away or, if there is insufficient time, adjourn that issue to another day.

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A6: The bulk of damages in an unfair dismissal case is usually made up of the employee's actual financial loss which, if the employee is unemployed, represents the salary and benefits that s/he would have received had s/he not been dismissed. If the employee has found new work s/he will be claiming, where applicable, the shortfall in pay and benefits from the new job compared to his/her job with you. If the employee is still unemployed at the date of the hearing, the Tribunal will have to make some assessment of what the future loss will be. However, the employee is under a duty to try to find a job as soon as possible in order to reduce his/her losses - this is what is often referred to as a 'duty to mitigate'. The maximum award of damages that can be made for the type of loss described above is currently £60,600. There are other types of awards that can be made. In discrimination cases there is no cap on the amount of damages that can be awarded.

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A7: You rightly state that there are no guarantees of success, but there are steps you can take to improve your chances. They are:

• Take legal advice at an early stage, i.e before dismissal and preferably before you begin disciplinary proceedings. Minimum statutory procedures apply to dismissal and disciplinary action at work. If these are not followed any dismissal will be automatically unfair. Taking advice early on might improve your chances of having no claim being brought at all! Even if you do still receive a claim, you will be better placed to defend it.
• Always keep good paper records because you will need them at the Tribunal. Documentary evidence can be more persuasive than oral evidence and/or may tip the balance in your favour.
• Don't leave an ET1 sitting in the in-tray and hope it will go away. Seek legal advice straight away and have your response drafted by a solicitor. The benefit of a well drafted ET3 should not be underestimated.
• Have legal representation at the hearing. This will ensure that your case is put forward as forcefully as you need to and that witnesses are cross examined effectively.

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