This guidance is not a substitute for independent legal advice. It is for employers who have received contact from ACAS about Early Conciliation and/or notice of a claim being made against them in the Employment Tribunal. It is not for claims that are being made in the Courts, although many of the principles are the same.
In this article, references to the employee will include anyone who is thinking about making a claim in the employment Tribunal, which can include workers.
Most Employment Tribunal claims require the employee to go through Early Conciliation (EC) with you first. This is done by the employee notifying ACAS, who will then be in touch with you. EC will typically last a month at most, although it can be extended in certain circumstances; this does not always give you much time to deal with it.
When you hear from ACAS/receive notice of a claim
1. Consider who needs to know about it. If you have a Human Resources department, then they will need to know, and will probably be best placed to coordinate your response. If not, you will need to identify which people are likely to need to be asked about the dispute. If you have legal advisors, you could let them know, so that they can provide guidance or at the very least open a file so that you can hand over quickly if and when EC fails.
2. Investigate and gather relevant documents. You will need to make sure that you have as much documentary evidence as possible to help you assess what happened, what your preferred outcome is, and to ensure that you have the relevant evidence to hand if the dispute becomes a claim. Often, you will have had a good idea that a claim might be coming through because you will have been through a disciplinary/capability procedure with an employee. In those cases, you will have a lot of information available to you about the dispute. If not, then you will need to identify the people who might have been involved; ask them for any relevant emails, or key emails and to save the rest for later; obtain copies of relevant documents from the Employee’s file; review the relevant parts of your systems and processes to see if there is likely to be anything relevant there.
3. Write out what happened in the order it happened (a chronology). Try to recall important conversations relating to the potential claim and write those down; memories fade with time, and so getting things down on paper sooner rather than later will be helpful.
4. Consider whether the employee’s complaint has been made in time. Has the employee made the complaint against the correct employer? These may seem like technicalities, but a lot can rest on whether a complaint is made in time, or against the correct respondent(s). For example, if the complaint has been made more than 3 months after the event complained of, then quite often it will be out of time for making a claim in the Employment Tribunal (please remember that some claims can be made in the County Court, in which case the time limits are much longer).
5. Consider what legal claims the employee might have. Sometimes an employee may make a complaint, but not have any actual legal claim available to them. Sometimes they may mention one legal claim, but actually have several that they could make. You should also consider how strong the claim is. This is an area where instructing a solicitor can be particularly beneficial to you.
6. Consider how much the claim is worth. Again this might be an area where it would be of great benefit for you to instruct a solicitor. You will need to consider what resources you can reasonably allocate to the claim.
7. If EC is unsuccessful, or the claim did not go through EC, ensure that you regularly check your post for an issued claim. After EC ends, the employee will typically have a month to submit their claim to the Employment Tribunal.
After the claim has been issued
8. You will typically have 28 days within which to submit your response to the Tribunal. You will need to use form ET3, which you can obtain from the Government’s website here, or you can complete it online here. It is very important that you complete the ET3 carefully, ensuring that you provide the claim number that you will find on the notice of the claim against you. It helps to provide as much detail as possible relating to the employee’s employment with you. Allow yourself (or your solicitors) plenty of time to do this.
9. Monitor for further instructions from the Employment Tribunal. You will be told when you and the employee will have to complete certain steps by. While there is often some flexibility in timescales for complying with Tribunal, you should not rely on it. The Tribunal can, in certain circumstances, stop you from defending against the claim if you do not comply with its directions.
The claim in the Tribunal
The following steps do not necessarily happen in this order in every claim; the Tribunal will tell you what it wants to happen.
(a) A preliminary hearing is likely to be held. This is usually where the tribunal and both sides will discuss what should happen and when to get the claim to a final hearing. Or the Tribunal could decide that there does not need to be a hearing, and just email both sides to say what needs doing and when.
(b) The tribunal will ask the Claimant to explain what remedy it is they are seeking. This could be reinstatement in their old job, it could be reengagement in a different job, but more commonly it is a claim for compensation. If it is compensation, they will need to set out calculations showing how much it is that they are claiming and why. You may want to consider submitting a counter-schedule with your own calculations if you think that the employee is wrong; in doing so, you are not admitting that you owe the employee anything, but you are saying that if you are liable then it should be the amount that you say instead of the amount they say.
(c) You will then need the appropriate people to prepare witness statements. Again, this is an area where it is often helpful to have the assistance of a solicitor. Remember that the more witnesses you have, the longer the final hearing is likely to be, which means more time spent away from your business. In addition, the employment tribunal will only want relevant facts explained to them by the witnesses. These statements will need to be as detailed in what occurred as possible, and should set out what happened in chronological order.
(d) Preparation for an attendance at the final hearing. You and your witnesses will need to attend the final hearing, and they should be prepared to be cross examined on their witness statements. The tribunal may make a decision at the end of the hearing, or it may reserve judgement to be handed down at a later date.
(e) If there has been no time to deal with the compensation claimed, the tribunal will arrange for another hearing to take place called a remedies hearing. The Tribunal will listen to evidence about what the appropriate remedy or compensation amount is at this hearing.
At all stages you should consider trying to settle the claim. You will be unable to recover your legal costs (except in certain limited circumstances), and so settling claim early can represent significant cost savings, as well as an early settlement reducing management and employee time spent on defending the claim.
John Cameron at Rudlings Solicitors LLP can advise and represent you in relation to your claims against you. Contact John here.
This article is not intended to constitute legal advice. If you are unsure as to your legal position you should seek independent legal advice as soon as possible.