Employment Law Services — Employers
Tribunal claims: common mistakes made by employers
An employee can take a case to the employment tribunal for a variety of reasons. These include claims for unfair dismissal, unpaid wages, a redundancy payment or discrimination. If the claim is successful, the tribunal can order you to pay compensation or give the employee their job back.
Failing to complete the response form properly or comply with orders
The tribunal will contact you if a claim is made against you and will send you a copy of the claim form (ET1). You have 28 days to complete and submit a response form (ET3) to the tribunal. This is a crucial document because it is the basis for defending the claim and provides you with the opportunity to explain what happened. If you fail to reply, or are late, the judge can make a decision without a hearing and is likely to decide in the employee’s favour.
The employment judge will review the claim and response forms in what is known as “the sift” and decide if either should be struck out, so you should take care to include all relevant information. If the judge decides the case should proceed, they will issue a case management order setting out a timetable of steps to prepare the case for a final hearing. Make sure that you comply with this order and all orders made by the tribunal.
Missing time limits
The first crucial deadline to observe is the 28 day limit for responding to a claim. As the claim process continues you will be given other deadlines by the tribunal and it is important to comply with them. If you have a good reason for not being able to comply, you should ask for an extension as soon as possible and before the deadline expires.
Missing a time limit means that the judge can potentially strike out your defence or decide the case without a hearing. There are also time limits for appealing against a decision which must be adhered to.
Ignoring discrimination questionnaires
An employee who is considering bringing a claim for discrimination can send you a questionnaire as a means of obtaining information and deciding whether they have grounds for a claim. You have eight weeks to respond to one of these although there is no legal obligation to reply. However, if you do not reply or are evasive in your answers, the tribunal can draw an inference that you did discriminate against the employee so it is important to respond fully.
Refusing to settle a claim
Probably the most common error made by employers is to insist on fighting a claim because they think they are right and do not want to give the employee any money. Often a claim can be settled for a small amount, the cost of which should be weighed against the hours of management time spent in defending it. The average time spent by an employer on a case is 13 days; you should consider how else this time might be spent in your business. Another consideration is the risk of bad publicity if you lose the case. If you want to try and settle a claim, you can do this via Acas and a solicitor will help you.
Not attending hearings
It is crucial that you attend all hearings, including any preliminary hearings to decide how the case will be handled, as well as the final hearing so that the judge can hear from you and you know what is happening. If you are not there, you may find that an important decision is made without you. If you will not be able to attend a hearing for a good reason, contact the tribunal as soon as possible with proof and ask them to postpone the date.
Failing to prepare properly for the final hearing
You will need to prepare statements from the relevant witnesses, such as the managers who conducted the disciplinary and appeal hearings, and they will have to attend the hearing to give evidence. You will need to list all the relevant documents in the case and agree a bundle of documents with the employee, which will be used at the hearing. You also need to think about the questions you will put to each witness. Do not underestimate the amount of time it will take to complete these tasks. In order to prepare properly, it can be a good idea to sit in and watch another tribunal hearing with your witnesses at least a month before your own hearing.
Failing to take legal advice
It can be hard to represent yourself if you have no experience of employment law or dealing with a tribunal claim. Some claims are very technical and depend on the interpretation of a piece of legislation or case law. As an employer you may find it difficult to deal directly with an angry or upset employee, or you may not have the time to defend the claim properly. If you find yourself in this situation or are concerned about the stress of conducting the tribunal hearing yourself, it is better to take legal advice sooner rather than later.
A solicitor will advise you whether you should settle the case. If so, they can conduct the negotiations and minimise the amount you have to pay the employee. If the claim does not settle, they will be able to draft all the paperwork for you, prepare the case properly and put your defence in the best possible light. Instructing a solicitor will mean that you avoid the mistakes mentioned above.