Employment tribunals can be a stressful, time-consuming daunting process but unfortunately many businesses have grievances or disputes with employees that just can’t be resolved. An employment tribunal is an independent body that resolves these disputes. An employee can make a claim against you at an employment tribunal if they think they have been treated unfairly or “you” the company has broken the law.
The most common claims at an employment tribunal involve:
- unfair dismissal, including constructive dismissal
- unlawful discrimination
- unpaid wages or deductions from pay
- holiday pay
- notice pay
Our advise to smaller businesses is before you start the long drawn out process of a tribunal, consider an easier option “a settlement.” It is very easy to get caught up in the battle (and the righteous cause) but before you put lots of time and energy and (further costs if you lose) sometimes it can be easier to eradicate the problem quickly, cut your losses and get back to running your business.
Think carefully before you start the process and assess your chances at winning the case, obviously the decision is yours, but here is a helpful guide on what to expect if you receive a claim:
You will receive a Claim.
An Employment Tribunal has to accept a claim against you and it will then issue you with a copy of the ET1 claim form and a ET3 response form of which you have 28 days from the date it was sent to respond to them.
You will need to summarise your response but do not write any comments on the ET3 document as this may be photocopied and shown at the tribunal. Write any comments you may have on a separate sheet.
You will have to inform them whether you plan to resist or defend the claim. A copy of the ET1 claim form, the ET3 and any other tribunal papers will also be sent to the Advisory, Conciliation and Arbitration Service (Acas). They will contact you and your employee to try to help sort out the dispute prior to the tribunal.
It is important to note that if you do not apply for an extension and you do not respond you will lose the right to defend the claim, this is called a Default Judgement.
When the tribunal has received your claim it will set a date for the hearing.
Preparing for your Case.
You firstly need to seek some professional advise and appoint a solicitor. Your solicitor will “agree ” with the other side and make copies of the documents they will use during the hearing of which is called the “agreed bundle.” Some tribunals will issue standard directions to both you and your employee to give each other certain information and documents within a time limit. You should always take these orders seriously and do what is asked by them within the time limit. If there is any a reason why you can’t, write to the tribunal as soon as you can to explain why. If you do not carry out an order without a very good reason, you may have to pay costs.
You will also need to let the tribunal how many witnesses you plan to call, if any and you will be required to take written witness statements from them. If someone is unwilling to attend the hearing then you can ask the tribunal to order a compelling order.
In some instances there are pre-hearing reviews or case management discussions where both sides will explain their cases, but most cases go straight to the main hearing in front of the Chairperson. This is where the claimant, the defence and the witnesses give evidence. Each can be asked questions by the other side, the chairperson and the lay members. The tribunal will then come to a decision and inform both parties of their decision either at the hearing or in writing.
HERE IS A USEFUL LIST OF THE DO’S & DON’TS IN THE PROCESS
Do use the correct forms, and submit them online. Tribunals prefer email.
Do keep ET3s – the response forms to the claimant – short. Keep the evidence for the witness statements.
Do keep track of all the important dates, such as when documents have to be disclosed, when witness statements have to be exchanged and when case management discussions are taking place.
Do create an index listing the key documents in the bundle created for the tribunal. This will help later on when you have to agree a tribunal bundle with the other side.
Do find a senior manager to hear an appeal. One question to ask is: “Who will make a good witness at a tribunal?”
Do let the witnesses have an input to the tribunal bundle and give them a copy of it.
Do make sure witness statements are not only good, but in the witness’s own words. Ensure witnesses practise reading their statements aloud so that they are comfortable with what they are saying.
Do think clearly about your response to questions. If you need to refresh your memory by looking at documents, say so.
Do watch out for hidden claims, particularly discrimination or equal pay issues, that can sometimes lurk amid the words.
Do keep a focus on what you want to prove.
Do start pulling together documents as soon as a claim has been received, as a variety of people may have the paperwork you need.
Do encourage managers to keep a daybook where they can scribble notes of informal meetings day by day.
Do watch a tribunal hearing first if you are to be called as a witness. And send your managers. It’s the best way to get first-hand experience and helps to settle the nerves.
Do make sure your witnesses know what’s in their documents before attending the tribunal hearing. Make sure they can answer questions such as: “When did you prepare the document?”, “What did you say at the meeting?” and “What was the outcome of your investigation?”
Do give short answers, be clear and confident, and address your answers to the employment judge. Allow the tribunal time to write down answers and watch the employment judge’s pen.
Don’t just rely on the ticked boxes. What may look like a straightforward constructive dismissal claim, which the company thought it could easily defend, could in fact be an equal pay claim. For example, a woman may have asked for compensation but wants to make sure it is at the same salary as a male colleague who did the same job.
Don’t include pay rise letters (unless the claim relates to pay rises) and don’t put in the whole company handbook – a relevant policy will do.
Don’t offer statements from people who are not willing or able to give evidence. Tribunals will not consider a statement without the witness being there for cross-examination.
Don’t use opinion or emotion in your statements. Keep to the facts.
Don’t expect the tribunal to understand your business and its own jargon.
Don’t be pushed to give evidence about a document you have not seen or cannot recall. If you need to refresh your memory, ask for five minutes to read the document.
Don’t mumble or the tribunal will think you are not convincing.
Don’t go off the point when drafting the ET3. Stick to the facts.
Don’t throw away or delete documentation relating to employees once they have been dismissed. You may need that information.
Don’t allow your solicitor’s style to dictate witnesses’ statements.
Don’t ignore the documents when addressing the tribunal; make sure key documents are referred to throughout the statement where necessary. Tribunals will read only the documents you point out to them. For example: “I offered the claimant an alternative role – see the notes of the meeting on page 55 of the bundle.”
Don’t think about where the questions are taking you – just tell the truth.
Don’t volunteer more information than necessary.