Avoiding Tribunal litigation is not always possible, sometimes even when you have followed all of the necessary procedures.
So how do Tribunal claims work?
ACAS pre-conciliation & ET1’s (Claim Forms)
It is most likely that you will have already been made aware of an impending claim because your employee or worker has warned you in advance. ACAS will also need to contact you as part of pre-conciliation. This can be a useful opportunity to explore settlement options, if that is right for you and your business. Employment law advice is crucial at this time.
If settlement cannot be reached and the claim continues, the next step will be receipt of the Claim Form (ET1). The Employee will now be called the Claimant and you (the employer business) will be called the Respondent.
Response (ET3) and next steps
A letter will arrive with the ET1 informing you of the date you need to submit your Response/Defence (ET3) by. This will be within 28 days of the date on which the ET1 Claim Form was sent to you.
Drafting of a complete Response by an employment solicitor at this stage will ensure that you put yourself in the best position to defend your claim and prevent issues arising, or extra work being required, later on.
Once the ET3 is sent to the Tribunal (who send it on to, who is now known as, the ‘Claimant’ (you are the ‘Respondent’)) an Employment Judge will review the ET1 and the ET3. They will then either send a written timetable to you or they will set a date for a ‘preliminary hearing’ to take place (by telephone or in person). At this hearing they will decide the appropriate timetable, setting out the necessary steps to have everything ready for the final hearing. This is called a Case Management Order.
Case Management Orders
Most timetables are similar and include dates for:
- the employee sending to the employer a ‘schedule of loss’ detailing the financial compensation they are claiming
- both parties sending to the other a list and copies of all documents that are relevant to the issues in the case (favourable or not)
- those documents to be agreed, indexed and paginated into a documents bundle
- the exchange of written witness statements (these are usually read by the Tribunal in advance rather than read aloud by the witnesses)
- the final hearing
We will provide guidance and information to you and any witnesses, as we approach any hearing. (Our aim is of course to try and settle your case on a reasonable basis if possi to avoid the disruption to your business, wherever possible). On the day of the hearing itself there can be some waiting and it is not uncommon for settlements to occur, where previously they were impossible.
Employment Tribunals are not terribly glamorous inside and it is much more informal that the High Courts and County Courts. However, it is a serious matter and this is when the ‘Tribunal Panel’ will hear all the evidence. Witness evidence is often the making or breaking of a case.
Depending on the type of case, it will either be heard by a qualified Employment Judge (usually a solicitor or barrister) on their own or with two lay members – one with an employer background, the other an employee background. We work with excellent barristers who will present your case for you.
At the end of a hearing we will either be told to wait whilst a decision is made, come back another day, or that they will send it to us in writing.
After the Judgment, if the Claimant is successful, the Tribunal will look at compensation (there are limits in some claims such as unfair dismissal) and the evidence supporting any losses. They will also consider any steps taken to reduce those losses (‘mitigation’).
Unlike other claims, in the Employment Tribunal each side normally pay their own costs. There are limited exceptions to this. An exception is the losing employer will usually have to repay the employee’s tribunal fees.
Appeals and reviews are extremely limited in their availability. An appeal can be for an error of law.
What next? How can we help you?
We suggest talking to us and getting employment legal advice when ACAS first make contact. We can discuss with you the benefit of settling or defending a claim. This may include considering a commercial approach (this does not mean accepting wrongdoing).
Your ET3 and witness statements are extremely important and we can help draft these. We visit clients at their offices around London, Guildford, Godalming & the surrounding areas, or you can attend ours.
In addition, we will provide ongoing advice and support through to the final hearing. We can also provide representation for you at the final hearing by one of the excellent barristers we work with around England.
To provide some useful information, whilst online, we have employment law checklists available. You can also sign up for regular updates.
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Thinking of bring a claim as an employee? See here.