Employment Tribunal Claims – An Employer’s Guide

No one likes to think about being sued. Unfortunately, the reality is that even the best employers with the best of intentions can fall foul of equality laws or fall short in their processes and can find themselves facing a tribunal claim. Other times, employees become disgruntled and “try it on” even where there has been no wrongdoing amounting to a lawful claim. Either way, if you are an employer, employment tribunal (ET) claims come with the territory.

But there is no need to panic. Below we outline the key considerations to help employers facing a threatened or actual ET claim prepare for, and engage with, the process.

Be sure to understand the situation, the relevant facts and the circumstances which have led to the issues. Familiarise yourself with the relevant policies and procedures, including those relating to grievances and disciplinaries. These policies in particular are the framework within which you can handle matters internally, potentially curtailing an escalation to the ET.

If the individual has already issued a claim, you will have been sent paperwork, including their ET1 claim form. The ET1 outlines the employee’s specific claim(s), so carefully review it to understand the nature of the allegations and the outcomes requested. Sometimes employees ask the ET for remedies which an ET cannot give.  

Diarise the deadline to respond to the ET1 and set reminders. You will normally have 28 days to respond. The exact deadline should be included within the additional paperwork that accompanies the ET1.

Consider consulting with an employment lawyer as soon as possible to understand your options and develop a strategy. Your lawyer can offer guidance if the issues have thus far remained internal, potentially preventing any claim from arising.

Additionally, your lawyer in particular will be able to offer expert legal guidance on how to strategically move forward, helping you to protect your position at every stage, and giving you the best chance of a positive outcome should matters progress.

Gather all relevant documentation, regardless of whose position it supports. You will be under an obligation at the disclosure stage of an ET claim to provide everything that is relevant to the claim, so you cannot narrow the scope to that which solely supports your side.

Relevant documentation can take the form of email correspondence, telephone attendance notes, letters, meeting minutes, your handbook (and/or relevant policies), the employee’s contract, any other documents relating to their role, and the dispute.

Evidence gathering is assisted by having maintained a practice of good record keeping, which is why your lawyers will always encourage you to put in writing details around process and discussions which have taken place. Witness statements are not required in the early stages, but it would be helpful to prepare a list of individuals whose statements might eventually be required.

In conjunction with the above steps, you will want to contact your insurers to see whether you benefit from legal expenses insurance cover and if so to notify them of a claim. You will want to do this at the earliest opportunity to ensure you can receive the most cost-effective legal support, whilst also ensuring you get that support in good time to meet your obligations to the other side and ET.

Acas is a neutral third-party organisation whose services facilitate early dispute resolution between employees and employers. All claimants are required to contact Acas before they make an ET claim, unless an exception applies (which is not often the case).

Acas is an opportunity for both parties to try to conciliate matters. Not all claimants will agree to participate in the early conciliation process, however. If they choose not to, they will simply tick the procedural box of having contacted Acas, and will proceed with submitting their claim.

If the claimant does choose to try early conciliation, this is a good opportunity for you to explore settlement. Acas is free to use, and you do not need to be legally represented to use it. Any settlement that is agreed during this process will be legally binding. In most cases, it is almost always worth exploring early conciliation if you are given the opportunity to do so.

If Acas conciliation was unsuccessful, then you will need to respond to the claimant’s ET1. The ET3 is the form in which you will set out your response. Your response should address each of the employee’s allegations with specific factual details and legal arguments. This is a very important step in the process, as it sets out the basis of your entire case and you will not be able to easily amend this later. It is therefore highly advisable to seek legal guidance, if this has not already been done, prior to finalising and submitting the form and supporting documentation.

You have 28 days from the date the ET1 is sent to submit your ET3. If you have already instructed a lawyer, they will be able to prepare this for you. 28 days is not very long, as these are calendar days. That is why we always recommend consulting with a lawyer at the first signs of a dispute. It allows you both to familiarise yourselves with the issues, ensuring smooth delivery of service within reasonable timeframes.

Responding promptly is our general advice for how to approach every step in the ET process. If your insurers require further information, go back to them as soon as possible. If the ET has written to you, consider their correspondence and action it without delay. Perhaps most importantly, diarise all ET deadlines and set reminders for these.

Even after you have submitted your ET3, settlement is still possible. You can continue to use Acas to facilitate negotiations, or you can attempt settlement talks directly between the parties (or their representatives).

As the case progresses, parties will learn more about the strengths and weaknesses of the other’s case. Staying vigilant to windows of opportunity to make an offer and thinking tactically about where to pitch it can often lead to resolution outside of the ET. Your employment lawyer can also negotiation directly with the other party if an approach through Acas is not working. 

Costs are an ongoing consideration, and we aren’t just referring to your lawyer’s fees (if you engage one). ET claims can be very time consuming and you or a colleague will be required to dedicate large amounts of time to dealing with them, affecting your ability to contribute effectively to the company’s business.

This is why we always encourage our clients to take stock of the situation and to give serious consideration to the costs associated with continuing to defend the claim versus the costs of settlement. We often see matters settle because commercial considerations prevail over the need to “be proven right”. It may be worth mentioning that any settlement will include terms of confidentiality and employers will usually require settlement without admitting any liability on their part.

Identify any lessons –  ET claims offer an opportunity for introspection. The main questions to ask are: what went wrong and what can we do to avoid this happening again? Perhaps it calls for an audit of your contracts, policies and the training that your organisation provides. Consider whether the workplace culture is aligning with your company’s values, or whether there are discrepancies between what you set out in writing and how matters are dealt with in practice. Learning from any mistakes or identifying weaknesses and shortcomings will be just as valuable as concluding the claim itself.