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29 Jun 2015
We’ve already looked at the Top 10 things employees need to know about Employment Tribunals, but business owners also need to be aware of what to do in the event of a staff member making a claim against them.
Here are the 10 things employers need to know about the Employment Tribunal process.
1) Before a claim can be brought, a claimant needs to approach ACAS to enter into what is called “the early conciliation process”. An approach from ACAS will often be the first indication an employer will have that an employee is serious about bringing a claim to an Employment Tribunal. An employer can decide whether to engage in this process and seek to settle the claim, or not. Even if an employer does not wish to engage in settlement discussions at this stage, ACAS can be approached at any time once a claim is actually brought. “Wherever practicable and appropriate”, Tribunals are required to encourage parties to use ACAS, judicial, mediation, or other means of achieving settlement. Parties will need to attend any hearings ready to discuss their approach to settlement
2) If you’ve received an ET1 from an employee, it’s important to respond and you would normally do so on a form called an ET3. If you don’t respond, the Employment Tribunal might make a judgment on the case that is automatically in the employee’s favour. This is called a default judgment.
3) Although claimants now have to pay fees to issue a claim, and this has led to a reduction in the number of Tribunal claims being issued, there is a downside to employers. If a claim succeeds, the employer will generally be ordered to pay the claimant’s fees as part of their compensation.
4) As time passes, it can be harder to locate relevant evidence and the time scale from receipt of a claim to preparation of documents can be several months, therefore it is advisable to gather all of the evidence together immediately and ensure that you have it to hand when preparing your response. Time can also effect a person’s recollection of events, which means that the sooner you can interview someone about the allegations and obtain their version of events the better. You could go one step further and prepare draft witness statements which can be reviewed and amended once all of the evidence has been gathered.
5) Once you have received an ET1, you have 28 days in which to respond. At this point it’s worth taking a commercial decision as to whether it’s financially viable to take the case to the Employment Tribunal or whether it would be more cost effective to settle the matter out of the Tribunal. This is a decision that should be taken on a case by case basis. If you make the decision to settle outside of the Tribunal, it is highly advisable to get your employee or former employee to sign an ACAS COT3 form; this will ensure that there can be no further claims brought forward by the employee or former employee in respect of the issues which have been brought up.
6) Prior to the hearing, the case will need to be prepared. Witnesses will need to be interviewed and statements prepared. This is normally best undertaken when you have obtained full details of the Claimant’s case and once both parties have exchanged documents, known as disclosure. Both parties will be required by the Employment Tribunal to disclose all relevant documents, both helpful and unhelpful to their case. If documents are not supplied, these can be formally requested by seeking an order from the Employment Tribunal. Typically, employers will have the majority of documents that are relevant to the issues. It is important to ensure that the process of disclosure is properly handled and any potential weaknesses in the claim thoroughly analysed to ensure how this evidence can be best presented.
7) At the hearing, evidence is typically presented at Employment Tribunals by the use of written witness statements. Although Employment Tribunals are often described as being less formal than other types of court proceedings, evidence is still provided on oath and parties are expected to follow certain types of procedure in the way in which their cases are presented. All witnesses, both for the employer and employee, can be cross-examined by the representative of the opposing party. Cross-examination is a skill and can be key to the effective presentation of a case. Once all the witness evidence has been heard, the parties make submissions and the Employment Tribunal will normally retire to consider its decision. Sometimes a decision is handed down at the hearing but sometimes, particularly with more complex cases, an Employment Tribunal will adjourn the hearing to enable it to provide its decision in writing to the parties.
8) If the Tribunal finds in favour of the employee, there are only limited grounds of appeal. Appeals can only progress if there is an error of law or if a party can argue that the original decision is “perverse”. There are fees payable to pursue an appeal.1)Costs awarded in Employment Tribunals do not ‘follow the event’: a losing party will not automatically find themselves having to pay the other party’s costs of the litigation. However, the Tribunal has discretion to order costs where a party, or their representative, has acted “vexatiously, abusively, disruptively, or otherwise unreasonably” in the bringing or conducting of the proceedings, or the claim had “no reasonable prospect of success” (Rule 77 of the Employment Tribunals Rules of Procedure 2013).
9) You should be prepared to produce any evidence and submissions which relate to the outcome the claimant is looking for if their claim is successful. If the claimant succeeds in a complaint of unfair dismissal (or a complaint relating to your failure to allow someone to return to work after pregnancy/maternity leave), the Tribunal may consider ordering reinstatement or re-engagement. As a result, you should be prepared to give evidence at the hearing as to the availability of either the job which the claimant held or similar jobs, whether you would take the claimant back either in their old job or in a similar one, and your reasons if you say it would not be practical or possible to reinstate the claimant. You should also be prepared to give evidence at the hearing to argue against the Claimant’s claim for compensation, in particular, if you think the Claimant could have secured another job. You will need evidence to support any argument to this effect.
10) If you want representation for your company at a Tribunal, or you’d like some advice on how preventative measures can help you avoid one, get in touch with one of our specialist team.