Every business is different, some get tribunal claims every week, some get none for many years. I recall the first time one landed on my desk and those feelings of mild panic and a bit of guilt, guilt at having ‘let down’ my employer and having let a situation get to this stage. In truth, we had fairly dismissed an employee for a conduct reason, following a reasonable process all the way along. We were not in trouble, he was chancing his arm.
So, how should you respond, what do you do first? Your top five actions:
1) Take a deep breath and stay calm
Like me, above, it is easy to panic when that form with the Court crest on the top lands on your desk. We all hope we never get them, but it is increasingly likely that we will have to face them at some point. You have a month to complete and return your response, so check the actual date it needs to be returned and mark that in your diary. I always return them a day or two early (online; earlier if posting) to ensure if there are any technical issues I still have time to sort those out.
The actual *first* thing I do is get my highlighter pen out and highlight the claimant’s name, the case number (you will need to use these often), the date the response needs to be in by and the date of the hearing. Fast-track cases (fairly simple cases) arrive with a response date and a hearing date in the first correspondence. More complex cases will only have the response date, the hearing date will arrive later.
The next thing I do is find a cardboard file and start a folder so that the claim is organised – I split the documents into (back to front): history, ET1 (claim form), notice of hearing, ET3 (response form), ACAS details, tribunal correspondence, claimant correspondence. If you turn out to have a large or complex case you may well need other headings as the case goes on, so I use a 10 part divider.
2) Look very carefully at the claim
The first, slightly cheeky, thing to look at is whether there is any way you can get the claim immediately dismissed. Two main things to look for are: is the claim in time, does the claimant have any required length of service to bring this claim?
Most claims need to be presented within three months of an ‘event’ (usually, but by no means always, a dismissal) – but don’t get too excited about this one, the tribunal has a LOT of discretion on how it handles time bars.
The claimant has to have one years’ service (if they joined pre April 5th 2012) or two years’ service (if they joined after 5th April 2012) to bring an unfair dismissal claim. Again, nothing to get terribly excited about as you will often find that where claimants lack service required they will try to insert other claims that do not have this service requirement – often they will add in some kind of ‘automatic unfair dismissal’ claim, or a discrimination claim.
If the claimant does fail on either of these tests you will still need to defend the claim but in your response you should make it clear there is a failure and ask for a dismissal on this basis – any other response you put in will be “in the alternative”, i.e. if the tribunal does decide to hear the claim.
Also, check to see if the claimant is represented and by whom. This can give you an insight into how the claim will go. If you are in a unionised environment it is likely the union will present the claim and their lawyers will get involved slightly later. If the employee has not used the union for the claim this could be an indication that the claim is weak as it is possible the union has declined to represent them.
3) Consider what points of law are being raised
The tribunal clerk will have ‘coded’ the claim with a code for each legal breach that is (obviously) being alleged. It is not always obvious what is being alleged and the judge may later add in claims they observe, so you do need to look for other allegations in the text yourself and try to anticipate them. Codes used are often fairly obvious (UD = unfair dismissal, WA = wages act, WTR = working time regulations, AL = annual leave, PID = public interest disclosure, etc) but not always easy to read in the stamp applied by the clerk. If you cannot read it, call the tribunal and ask them to tell you how they have coded the claim. It is also important to be able to read this stamp as it will include the date the tribunal received the claim, which is pertinent to step two above.
The ET3 (your response form) will be your main or key defence. Everything you intend to use to refute the claim needs to be in here and it needs to be very clear that you are defending each and every legal claim in the ET1 (claim form). Make a note of all the points of law you can see to ensure they are covered in your response.
4) Speak to the people concerned
It is obviously the people who were involved in the dismissal, or other behaviour, that you need to speak to about what really happened. Try to pull together a very basic timeline along with all the documents that support your defence. The earlier you do this, the better your defence will be. The documents you find now will be presented to the tribunal in the ‘bundle’ (the group of documents agreed by both parties to be referred to during the hearing) and getting them into date order will show the ‘story’ of your actions.
In most situations you will probably need to supply the employee’s contract of employment, any employee handbook and any relevant policies, so pull those out as well – although be aware there can be quite strict limits on the number of pages in a bundle and the claimant is likely to have some documents to include as well.
The people you speak to now will be your witnesses at the hearing so get them to make some notes now while they can still (hopefully!) remember what happened – hearings can take years to come before the tribunal and the witnesses will forget the details, so the more they can get down now, the better. Their stories are your defence so you need to be particular about what you put in your ET3 and sure that it will later match their witness statements.
Having got yourself all straight you will need to take advice on completing the ET3. As above, this is the main part of your defence and you really don’t want to miss anything you could rely on as a defence, you cannot add more defences later (though you can reserve your right to add to your ET3 if the claimant has not provided full details or has made a similar reservation in their ET1).
You are likely to need an advocate at the actual hearing and this person will need to be involved in preparing the defence and interviewing the witnesses, so you do need to get them on board early, even if it is just to check your ET3 for you.