Tribunal Claims

If a present or former employee is bringing action against you in the Employment Tribunal, you will need clear and sensible advice as to how to respond.

At Advantage Employment Law, our solicitors will advise you on a suitable strategy to deal with the claim. We will discuss the relevant law with you and, in some cases, the possibility of a settlement.

We set out below some guidance for handling Employment Tribunal claims:-

1. Responding to a Claim Form

2. Case Management Directions

3. Case Management Discussions

4. Pre-Hearing Review

5. Settlement Negotiations

1. Responding to a Claim Form

When responding to the claim, you must use the prescribed form ET3.  A blank form will be sent to you with the Claim Form. However, you may prefer to complete an electronic version. This can be obtained at www.employmenttribunals.gov.uk.

The electronic version can be printed and submitted by post or fax.  Alternatively, it can be submitted online.

Although there are a large number of questions on the ET3 Form, only 4 of them are compulsory. These are:-

• The Respondent’s full name;

• The Respondent’s address;

• Whether or not the Respondent wishes to resist the claim in whole or in part; and

• The grounds on which the Respondent wishes to resist the claim (if the claim is to be resisted).

Time Limits for Responding

A Respondent only has 28 days in which to respond to a Claim Form.  The 28 day period begins on the date that the Claim Form was sent and not the date that it was received. 

The first thing you must do upon receipt of a Claim Form is enter the last date for responding in your diary. The date on which the Claim Form was sent out can be ascertained from the letter accompanying the Claim Form. 

For the purpose of calculating the time limit, that date itself is not included. For example, the Claim Form is sent on 1st October 2007, the last date for presentation of the response is 29th October 2007.  The response must be filed by midnight on that date. 

Applying for an extension of time for submitting a Response

If you think that you will not be able to complete the response within the time limit, you may apply for an extension.  However, you must apply before the expiry of the 28 days. 

If the response is submitted out of time, you will not be allowed to take any further part in the proceedings.  In other words, the Claimant will be awarded judgment against you without the need to go to a hearing.

In practice, it can take several weeks for an Employment Tribunal to deal with an application for an extension of time. By the time that it has been dealt with, the 28 day period has expired. 

Accordingly, it is often better to put in an ET3 Form that only contains the minimum information. You can then apply at a later date to amend it when further information is available.

We recommend that you contact one of our solicitors straight away in order to ensure that you received the best possible advice before submitting a claim.

2. Case Management Directions

After you have submitted the ET3 Response Form, the Employment Tribunal will automatically send out Case Management Directions.  The standard directions are:-

• Both the Claimant and the Respondent shall disclose to each other by [date] all documents in their possession and control that are relevant to any issue in the case including all documents which relate to the remedy claimed.  This can be done by sending a list or sending photocopies.

• Any person who is to give evidence before the Tribunal (including the Claimant and the Respondent) shall prepare a written statement containing all of the evidence he or she intends to give.  Theses statements should be typed or legibly written and should be exchanged between the parties by [date].  Six copies of each statement should be brought to the hearing.

• The Parties shall no later than [date] prepare a joint bundle of documents containing all of the documents that they each wish to rely upon. Each page of the bundle should be consecutively numbered and there should be an itemised index.  Six copies should be brought to the hearing.

Again, it is important to enter each date in your diary to ensure compliance.

Disclosure of documents

Both parties are required to disclose all relevant documents whether they help or hinder their case.  These include:-

• Employment contracts;

• Staff Handbook or policies;

• Pay slips;

• All relevant correspondence;

• Minutes of meetings;

• Any documents relating to disciplinary action;

• Any other documents that are relevant.

Under the Date Protection Act, the Claimant is entitled to a copy of the personnel file if it is requested. 

You are also required to preserve electronic data that may be relevant, such as emails, electronic versions of printed documents, data bases and text messages.  The duty to disclose documents in ongoing.  Therefore if you come across any documents in the course of the proceedings that may be relevant to the case, these should be disclosed immediately.

The Claimant is obliged to disclose all details of efforts to find work.  These include job application forms, letters applying for jobs, copies of job adverts, a log of all telephone applications and a printout of any jobs applied for online.

Witness statements

You will need to decide at an early stage who you need as witnesses.  The usual witnesses acting for a Respondent would include the person who conducted any disciplinary procedure and anyone conducting an appeal. 

Witness statements should include a heading that contains the name of the Employment Tribunal, the Case Number, the names of the parties and the name of the person making the statement. All of the paragraphs should be numbered.

As soon as you receive notification of the hearing date, you should contact each witness to ensure that they are available. If any cannot attend you should consider applying for an adjournment.

Trial Bundle

A Trial Bundle is a single bundle of documents.  It includes the following:-

• ET1 Claim Form;

• ET3 Response Form;

• documents disclosed by both sides, in chronological order;

• the Claimant’s schedule of losses

• the Respondent’s counter-schedule. 

The Parties should agree the content of the Trial Bundle, if possible.  It should contain an index and the pages should be clearly numbered.  It should not include witness statements.  These are kept separate.

At the hearing, there should be enough Trial Bundles for each of the three members of the Tribunal, the witness box and as many as you need for yourself.

Extension of time for complying with Case Management Directions

Although it is preferable to comply with all Case Management Direction on time, in practice, there is a certain amount of leeway. If you are likely to be late in complying with a direction, seek to agree a later date with the Claimant.

Even if the Claimant does not agree, you are unlikely to be penalised if you are only a few days late, provided that it has not prejudiced the Claimant.

However, you must ensure that exchange of witness statements take place simultaneously.

3. Case Management Discussions

The purpose of a Case Management Discussion (“CMD”) is to promote the efficient handling of a case by the Tribunal.

A Tribunal Chairman may arrange a CMD on his own initiative or, alternatively, either party may apply for a CMD to take place.

At a CMD, the Chairman can make orders that will assist in ensuring that the case is fully prepared for trial.  Rule 10 provides that the following orders can be made at a CMD:-

(a) the manner in which the proceedings are to be conducted, including any time limit to be observed;

(b) that a party provide additional information;

(c) requiring the attendance of any person in Great Britain either to give evidence or to produce documents or information;

(d) requiring any person in Great Britain to disclose documents or information;

(e) extending any time limit, whether or not expired;

(f) requiring the provision of written answers to questions put by the tribunal or chairman;

(g) that a short conciliation period be extended into a standard conciliation period;

(h) staying the whole or part of any proceedings;

(i) that part of the proceedings be dealt with separately;

(j) that different claims be considered together;

(k) that any person who the chairman or tribunal considers may be liable for the remedy claimed should be made a respondent in the proceedings;

(l) dismissing the claim against a respondent who is no longer directly interested in the claim;

(m) postponing or adjourning any hearing;

(n) varying or revoking other orders;

(o) giving notice to the parties of a pre-hearing review or the Hearing;

(p) giving notice to either party;

(q) giving leave to amend a claim or response;

(r) that another person be joined as a party to the proceedings;

(s) that a witness statement be prepared or exchanged; or

(t) as to the use of experts or interpreters in the proceedings.

A CMD usually lasts about one hour, although there can be a lot of waiting around at the Employment Tribunal.

Applications for Case Management Orders

Although a Tribunal Chairman can make any of the above orders on his own initiative, it is often necessary to apply to the Tribunal for a particular order.  Either party can apply for any of the orders listed above.

The applications are made under Rule 11. This Rule provides that:-

• The application must be made in writing;

• The application must state reasons and explain how the order sought would help the Chairman to deal with the proceedings efficiently and fairly;

• If the party seeking the order is legally represented, a copy of it must be sent to the other party.

It is good practice to send a copy of the application to the other party in any event.

4 Pre-Hearing Review

The purpose of a Pre-Hearing Review is to identify very weak cases or defences at an early stage. 

Where a claim or response has little reasonable prospect of success, the Tribunal can order the payment of a deposit of up to £500 as a condition of being permitted to proceed with it.

Alternatively, in some circumstances, the claim can be struck out altogether.  This can be done on the following grounds:-

• That all or part of the claim is scandalous, vexatious or has no reasonable prospects of success;

• That the manner in which the proceedings have been conducted has been scandalous, unreasonable or vexatious;

• The claim has not been actively pursued;

• One of the parties has failed to comply with an order or practice direction;

• The Chairman considers that it is no longer possible to have a fair hearing.

The types of matters that are considered at a Pre-Hearing Review commonly include the following:-

• Whether the Claimant was an employee or an independent contractor;

• Whether the claim has been brought in time;

• Whether there has in fact been a dismissal;

• Whether a Claimant in an ordinary unfair dismissal case had one years’ continuous service;

• Whether the Claimant raised a written grievance if he was required to do so.

An application for a Pre-Hearing Review can be a useful weapon if it is clear that the Claimant is simply trying it on, particularly if it could lead to an order that the Claimant pay a deposit of £500.

5. Settlement Negotiations

Unless there are particular commercial policy reasons why a settlement should not be explored, settlement negotiations should take place at an early stage.  The advantages of a settlement include the following:-

• A substantial saving in working hours will be made;

• Potential legal costs will be minimised;

• Disruptions to business caused by attendance of witnesses will be prevented;

• The risk of adverse publicity will be avoided.

ACAS Conciliation

An ACAS conciliator will be assigned to every case. The principle role of ACAS is to bring about settlements in order to avoid claims in the Employment Tribunal.  The process of conciliation assists the parties in reaching a voluntary resolution of a complaint without the need for a Tribunal hearing.  ACAS conciliators can be very useful, particularly when a Claimant is unrepresented. 

The conciliator may provide the following services:-

• Explain the relevant legislation;

• Make reference to legal precedents;

• Explain Tribunal procedures;

• Explain the necessary qualifications for bringing a claim;

• Explain when a party may incur risk of having costs awarded against him or her;

• Give guidance about the drafting of terms of settlement and explain their implications;

• Assess the likely compensation at the Tribunal.

Advice given by an ACAS conciliator can sometimes dissuade an unrealistic Claimant from pursuing their claim. 

The standard conciliation period is 13 weeks, although there is no limit in discrimination claims.  This period can be extended by a further 2 weeks if ACAS considers it probable that proceedings will be settled during the extended period.

The Schedule of Losses

A Claimant will be required to disclose a schedule setting out all the losses claimed. This should include the following:-

This is calculated in the same way as a redundancy payment, that is by reference to the Claimant’s age, years of service and average weekly pay. The weekly pay figure is subject to a maximum of £310 per week.
If successful, the Claimant will be entitled to:-

• half a week’s pay for each year of service below the age of 22;
• one week’s pay for each year of service between the ages of 22 and 41;
• One and a half week’s pay for each year of service from the age of 41 onwards.

If it is found that the Respondent failed to follow the minimum disciplinary procedure in carrying out the dismissal, the Claimant will be entitled to a minimum of four weeks’ pay as a basic award.

This award is intended to compensate the Claimant for financial losses relating to the dismissal, both past and future. These losses include:-

• Salary;

• Bonus or commission payments;

• Benefits, such as health care, company car, use of mobile phone or computer etc;

• Pension Rights.

Challenging the Schedule of Losses

Upon receipt of the Claimant’s schedule of losses, you should challenge the figures claimed. The Tribunal can make deductions from the compensation in certain circumstances. For example:-

• If the Claimant is partly to blame for the dismissal, the award can be reduced by up to 100%  (Section 123(6) Employment Rights Act 1996 (“ERA 1996”))

• If the Claimant has failed to make proper efforts to find another job, the award can be reduced (Section 123(4) ERA 1996). The Tribunal will award losses up to the date that it considers the Claimant should have found another job.

• Where the dismissal was unfair because the employer failed to follow a fair procedure, the Tribunal can reduce the compensation awarded to reflect the probability that the Claimant would have been dismissed even if a fair procedure had been followed (Polkey v A E  Dayton Services Ltd [1988] AC 344, [1987] 3 All ER 974.

• If the Claimant was given the opportunity to appeal but did not do so, the amount awarded can be reduced by between 10 and 50 per cent (Section 31 Employment Act 2002).

The maximum Compensatory Award that a Tribunal can order is currently £60,600.00.
Compensation for discrimination is based on the level of injury to feelings.  This can vary from case to case but will always attract a minimum award of £750.

If you have received a claim form, we recommend that you contact one of our solicitors as soon as possible. We shall then take your detailed instructions and complete the response form on your behalf.