WHAT DO YOU NEED TO CONSIDER?
Have you received a claim from an existing or former employee which needs to be defended in the Employment Tribunal? We are happy to help. Here is what you need to consider.
1. DEFENDING A CLAIM
A respondent (the Company against which the Claim has been brought) that has received an employment tribunal claim must submit their defence, known as a response, to the tribunal using the standard ET3 form.
The tribunal must receive the ET3 within 28 days of the date it sends the ET1 out to the respondent. The tribunal will confirm this deadline in writing when it sends out the ET1. It is important that the ET3 is drafted accurately as its content may be relied upon as evidence.
2. EMPLOYERS’ CONTRACT CLAIMS
Employers are not able to bring freestanding breach of contract claims against former employees in the employment tribunal. However, they may bring certain contract claims (previously known as counterclaims) if the claimant has brought a contract claim against them.
FURTHER TRIBUNAL INFORMATION
If the employment judge decides on a review of the ET1 and ET3 (sift stage) that the case should proceed, they will typically issue a case management order, setting out a timetable of steps to be completed to ensure the case is prepared in advance of the final hearing.
Alternatively, they will list a preliminary hearing to consider the case management issues, including timetabling.
A preliminary hearing is an interim hearing that may be called by the tribunal of its own motion or on the application of one of the parties. There are two main purposes of a preliminary hearing:
To discuss administrative issues such as:
- The further directions needed to prepare the case for final hearing
- The issues in dispute the employment judge will need to determine at the final hearing
To determine preliminary issues, including:
- Whether the claim or response, in full or in part, should be struck out
- Whether a deposit order should be made
A preliminary hearing might also be used for judicial assessment of the parties’ respective cases.
If a party requires the tribunal to make a specific order at any stage before the final hearing, they will usually need to make a formal application, either orally at a hearing or in writing.
There are many issues that may be submitted as an interlocutory application such as:
- Extending time limits
- Amending a claim or response
- Striking out a claim or response
- Postponement, adjournments or staying procedures
If a party disagrees with any decision of an employment tribunal or employment judge, they can apply for the decision to be reconsidered. This must be done in writing within 14 days of the date the tribunal sent out the notice of the original decision.
Each party to a tribunal claim is under a duty to disclose to the other party and the tribunal all documents in their possession or control that are relevant to the issues to be determined in the proceedings, whether those documents assist their case or the other party’s case.
It is usual for each party to prepare a chronological list of the relevant documents in their possession or control. The lists are simultaneously exchanged between the parties, who then request copies of any documents from the other party’s list of which they do not have a copy.
In most cases (although not in Scotland), the tribunal will direct that the parties prepare written witness statements setting out the evidence each witness will give at the final hearing. The written statements are then simultaneously exchanged between the parties in advance of the hearing.
Please contact us for information on the current maximum and minimum awards for particular employment tribunal claims as these may change annually.
In addition, you may require assistance to calculate other matters which include redundancy and how to calculate the value of an employee’s loss of pension.
In most cases, the tribunal will direct that the claimant prepare a schedule of loss setting out the monies they are claiming from the respondent. The respondent may wish to serve a counter-schedule setting out its response to each element of compensation claimed.
In certain cases, the respondent may wish to argue that the claimant has failed to adequately mitigate their loss.
In certain types of cases, if one party fails to comply with the requirements of the ACAS Code of Practice on Disciplinary and Grievance Procedures, the level of compensation awarded may be adjusted by the employment tribunal, upwards and downwards.
Due to the extensive advocacy experience of the principal solicitor who has been representing in many Tribunal cases for the past twenty years, you may be represented from the outset to the conclusion to include the preparation and representation in the tribunal. This is to ensure you feel confident with the person who is representing you and with whom you have been working closely for the months leading up to the Employment Tribunal. This provides you with the continuity throughout rather than passing you over to another advocate.
In the event of an unsuccessful result, a request may be submitted to ask the tribunal to reconsider its decision if it is believed to be necessary and is in the interests of justice to do so. An application for a reconsideration needs to be made within 14 days of the date on which the decision was sent to the parties.
In addition or alternatively, an appeal may be submitted to the EAT setting out the grounds of appeal.
Most employment tribunal claims will settle before the final hearing. In many cases, it will be in the respondent’s commercial interests to settle a claim, taking into consideration the legal costs and management time it is likely to spend in defending the claim through to a final hearing. However, there are issues that may arise in connection with the settlement of employment claims which may determine otherwise.
DO YOU NEED MORE INFORMATION ON THE PROCESS?
Then speak to us for a no-cost discussion about your needs
EMPLOYMENT CLAIMS AND ALTERNATIVE DISPUTE RESOLUTION (ADR)
There are a number of ways in which the parties can attempt to resolve an employment dispute and reach a settlement, either before or after it becomes the subject of a tribunal claim and with our assistance:
Employment Tribunals, wherever practicable and appropriate, encourage parties to resolve their disputes by agreement which includes exploring the possibility of settlement or mediation.
This is a binding agreement between the employer and employee (or other parties to a statutory claim) to settle a case or refrain from instituting or continuing with certain proceedings.
Instead of the involvement of an ACAS conciliation officer there is the additional safeguard that the employee must have received independent legal advice on the agreement.
On 29 July 2013, compromise agreements and compromise contracts were renamed as Settlement Agreements in all relevant pieces of primary legislation.
Not all claims can be compromised by means of a Settlement Agreement. Accrued pension rights and claims for unknown personal injury plus a number of other claims may not be settled.
Mediation is becoming an increasingly popular method of achieving a negotiated settlement between the parties to an employment tribunal claim and is a service A C Employment Solicitors provide as Amanda Capon, the Principal Solicitor, is a CEDR qualified Commercial Mediator.
An employment judge may offer this to the parties in certain types of claim.
The Advisory, Conciliation and Arbitration Service (ACAS) is an independent, impartial organisation which is available to both parties to an employment dispute with regard to possible settlement.
Settlements are usually negotiated between the parties’ solicitors, often conducted via the services provided by ACAS.
As part of its reform of employment law, the Government decided to impose a duty on the parties to attempt conciliation through ACAS before proceedings could be issued in most claims. In many cases, an ACAS conciliator may appear to be little more than a messenger between parties who are represented by solicitors.
Negotiating a settlement package is just one of our areas of expertise, with the solution providing an economical way to resolve a dispute if a conclusion is reached either directly with the party (i.e. employee) concerned or via ACAS.
Once the terms of settlement have been agreed, these will be recorded in a settlement agreement or a COT3 if ACAS has assisted in the negotiations.
DO YOU NEED MORE INFORMATION ON TRIBUNALS?
Then speak to us for a no-cost discussion about your needs