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In many cases, if a dispute arises and mediation does not work, the next step for an employee is to issue a claim in the Employment Tribunal.
Since 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 on 8 June 2023, between October and December 2022 the Employment Tribunal received 8,100 single claim receipts and disposed of 9,000 single claim cases1.
At the end of March were 37,000 single claim open cases, and for the quarter, 15,000 multiple claim receipts and 11,000 disposals were recorded, 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 are not included in these statistics.
The tribunals are clearly 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 law firm VWV, sets out the areas to note when considering how to defend against an employee’s complaint.
The first thing Mr Stevens said to check is the initial action required. He explained that employers have 28 days from receipt of the ET1 to respond to the claim by filing form ET3 with the appropriate employment tribunal.
He said: “The importance of meeting this deadline cannot be overly stated. If you do not comply with the deadline, the tribunal may enter a default judgment against you.
“The impact of this is that the employer cannot play a part in the claim or defend themselves.”
The deadline will always be clearly set out within the Employment Tribunal’s correspondence notifying an employer of an employee’s claim.
Mr Stevens said that it may be possible to seek an extension to this deadline; for example, because a key individual involved in the case is 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.
Mr Stevens warned, 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 make sure that the ET3 form is ready to go before the 28-day deadline to err on the side of caution”.
Be aware of deadlines
Speaking of deadlines, employers should always check that the employee has submitted their case within the allotted time.
Mr Stevens said: “The general rule is that an employee has three months from the termination of their employment to contact Acas to initiate the pre-claim conciliation process required before an employee can bring an unfair dismissal claim.
“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 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.
Mr Stevens pointed out that the tribunal will usually check these deadlines have been complied with, but it is always useful to check.
He added: “If the employee or worker has failed to get their claim in before the relevant deadline then the tribunal will have no jurisdiction to hear the claim.”
Some legal protections only apply to employees; for example, claims of unfair dismissal and for a statutory redundancy payment. On this, Mr Stevens said 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 explained: “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 example, as a result of a Transfer of Undertakings (Protection of Employment), known as a TUPE transfer.
Lastly, it is worth noting that claims should be clearly set out on the ET1 form, but further allegations may be included within any additional information attached to the ET1. As a result, Stevens warned that “any defence should respond to each specific complaint that is being made”.
Evidence is everything
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, Mr Stevens said that a key step in fighting the claim is to take initial statements from relevant employees.
He said: “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 is helpful to the employer’s case – to be sent to the claimant. It is for this reason that Mr Stevens recommended 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, Mr Stevens suggested that if the ET1 is vague, partly incomplete or contradictory then an employer can consider serving the employee with a request for further and better particulars of the claim.
He added: “This will allow for specific questions to be put to the employee regarding the unclear parts of their claim. However, employers should always think carefully 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.”
Settle if appropriate
In any dispute, settlement is always an option to consider – particularly if the employee has a good chance of a successful claim. Beyond this, Mr Stevens said that 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. He concluded: “While you making a payment to the employee may be the last thing that you want to do, an early settlement could make good commercial sense.”
If a settlement is on the table, Mr Stevens emphasised that if negotiations begin before the ET3 form is filed, “make sure that an eye is kept on the upcoming deadline”.
Taking legal advice at an early stage will help an employer understand 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.
1. Ministry of Justice (2023). Tribunal statistics quarterly: January to March 2023, https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-january-to-march-2023/tribunal-statistics-quarterly-january-to-march-2023#