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How Employers Can Defend Against Tribunal Claims
Employers who follow ACAS guidelines and employment best practice have the best defence – though as we explained, this doesn’t mean you won’t ever end up disputing a tribunal claim.
All employers should be prepared for the eventuality that an employee may raise an issue against them, such as discrimination or unfair dismissal. The best thing an employer can do at this point is to speak with experienced employment lawyers immediately.
Helix Law can help you through the entire tribunal process, which entails:
- Responding to the claim
- Preparing for tribunal
- Attending the tribunal
We also take steps to help you potentially settle the dispute in its early stages. Employees and employers are required by law to try to settle the dispute through ACAS before taking the matter to tribunal. Where possible, our solicitors will aim for resolution at this stage.
If the case reaches tribunal and you are unsuccessful, you will likely have to pay compensation as well as your own legal costs, or you can decide to appeal the decision. However, appeals can be expensive and risky, it’s better to get good legal advice early on.
Responding to a Claim
It is mandatory that employees contact ACAS to begin early conciliation proceedings before their claim can be heard by the Employment Tribunal. Therefore, often the first official notification you will receive of a claim will be from the ACAS officer assigned to the case.
We recommend at this stage that you engage with settlement negotiations with ACAS and the claimant. If you do not, the claimant may take their case straight to tribunal.
If you receive notice of a claim without having been through ACAS settlement negotiations, this should be included in your response, as this could affect the case’s outcome.
You are required to respond to any claim within 28 days using form ET3 – you may also respond online. If it is not possible for you to respond within this timeframe, you may request extra time. Be careful before requesting extra time, you will need a good reason. If you fail to respond at all, the claimant can automatically win their case.
Contact Helix Law at the earliest opportunity after receiving a notice – the more time is on your side, the better chance you have of disposing of the matter at the lowest possible costs – a stitch in time saves nine.
An employment judge will review the claim and response and decide whether the case should go to tribunal.
If the case progresses to a hearing, you will be given a minimum of 14 days to evidence your defence, including the gathering of documents and witness statements. At this point, you will receive details of the proposed compensation (should you lose) and a Case Management Order, which is a schedule laying out dates for the submission of key documents and witness statements.
You may need to attend a preliminary hearing, where you will review the case and be given a designated date and time for the tribunal hearing. You will also be provided with details of what you will need to bring and prepare. It’s important that you inform your lawyer of all details as soon as possible, so they can work with you to get preparations underway for the tribunal hearing.
It is worth bearing in mind that a settlement may be negotiated with the employee at any point before the case reaches tribunal. If an opportunity for an early settlement arises, Helix Law can help you avoid going through tribunal.
The two main factors for preparation are:
- Documents: relevant documents such as payslips, contracts and pension scheme details may be presented as evidence in the case. The employee can request documents from you, which you may be obliged to provide if they are relevant to the case, and you may request the same from them.
- Witnesses: you may call upon witnesses to strengthen your defence if applicable. Witnesses can participate either by appearing at the tribunal or by giving a signed and written statement. If a key witness refuses to participate, you can make a court application to order them to appear or provide a statement. Before compelling a witness you should think careful about what a reluctant witness may say – they may do more harm than good if they do not want to be there.
These preparations must be made as soon as possible to avoid missing evidence or problems with witnesses. Speak with Helix Law to ensure your defence is as strong as it can be.
What Happens at Tribunal
You can choose to present your case yourself, or you can instruct a lawyer to be your representative and conduct the case on your behalf. Helix Law’s highly trained and experienced employment lawyers have seen many employers through tribunal proceedings, and are happy to represent you in a tribunal case.
When the tribunal hearing is underway, both parties will have to outline their positions and will answer questions from the judge. The complainant may put forward questions to you as well. You may question the complainant and any witnesses present.
When your case is presented, it is important that you or your lawyer highlight these areas (if applicable) in order to defend your position:
- False claims in the complainant’s statement
- Explain the wider context of the circumstances in which the claim arose – such as events surrounding the incident and all relevant evidence to support this
- Offer a compromise
- Put your case to the claimant and their witnesses
Once the cases of both parties have been presented, the judge will deliberate, and a decision may be made on the same day or in the days following – if the latter happens, you’re likely to be notified of the outcome by post.
If you win the case, it’s unlikely that you will be able to recoup your legal expenses. However, if the complainant is considered to have acted unreasonably, you may be awarded some compensation towards your fees. For this, though, you will need to make an application to the tribunal (a process that our lawyers can assist with). The tribunal is reluctant to find a claimant unreasonable and so their conduct needs to be very bad indeed.
If you are unsuccessful and the employee is awarded compensation, there are a variety of consequences you might face, including:
- Paying the employee a sum of compensation decided by the judge
- Paying the employee’s tribunal expenses and witness expenses
- Paying damages and/or loss of earnings to the employee
- Having to reimburse any benefits they had to claim as a result of the issue
- Being ordered to reinstate their job
The total cost demanded from you is usually calculated by considering the total financial loss to the employee caused by you, plus interest which begins to accrue from the day of the judgment. Payments made in full within 14 days of the judgment do not need to pay interest.
If you wish to appeal the decision, make sure you have been advised to do by your legal team – weak appeals can end up costing you more. Consult with Helix Law’s employment solicitors before deciding to make an appeal. If you have a strong case for appeal, you must put a request in writing to the tribunal within 14 days of the decision asking for a revision and the reasons for this request.
If you believe that a legal mistake was made during the proceedings, you may contact the Employment Appeal Tribunal. Again, this is something we strongly advise guidance with, and our team is happy to help.
How Much Are Tribunal Costs?
Ultimately, the costs incurred by defending an employment tribunal claim depend on the type of claim – speak with Helix Law today to determine how much you might pay in costs and tribunal fees.
Whichever type of tribunal you go through or the outcome of your case, we’re committed to advising you through your proceedings while minimizing your costs. We can offer fixed or sometimes conditional fees, dependant on your case and circumstances. The key to saving as much money as possible, though, is to act fast when you are made aware of a claim.
You can contact us to find out more about employment tribunal claims either by filling out our online form, calling us on 01273 761 990, or emailing [email protected]. We’ll get back to you as soon as possible to ensure a speedy resolution can be reached.
Employment Tribunal FAQ’s
If an employee has brought a claim against your company to an Employment Tribunal, don’t panic. Be aware that although employers can rarely recover legal costs, even if they win a court case, Helix Law’s experienced team can guide you through the process, offering fixed or sometimes conditional fees. We recommend that you seek legal advice at the earliest possible stage to achieve a quick settlement, saving you time and money.
Here are some frequently asked questions regarding Employment Tribunal claims.
Following the Gibbons Review (a publication which set out a more efficient method of dealing with employment disputes), the Employment Act 2008 was put into force in April 2009. This gave employers a better and simpler framework to follow when resolving disputes with employees.
An Employment Tribunal makes decisions concerning employment disputes, including discrimination, redundancy and unfair dismissal.
The procedure goes as follows:
- The employee registers their complaint with the Employment Tribunal using form ET1. They are not required to pay a fee to register the claim.
- They can bypass your company’s grievance procedure and go straight to the Tribunal. However, if they fail to go through the grievance procedure without reasonable cause, they may face up to 25% reduction of any award they win.
- If the employee’s claim passes the ET1 stage, you will be sent a copy of the form. You are required to respond within 28 days using the ET3 form, detailing the case you intend to put forth to the Tribunal. If you do not respond, you risk a default judgment being awarded to the complainant.
- Alongside your copy of the ET1, Acas will contact you inviting you to engage in a conciliation process. The case can take conciliation at any time until the hearing.
- If the conciliation fails, a date will be set for the hearing, which can be scheduled at a minimum of 14 days’ notice. Failure to attend will likely result in favour being awarded to the employee.
- While Tribunals are more informal than court procedures, you may call witnesses to support your claims, and you can cross-examine any witnesses brought by the other party. You can use a lawyer to present your case. If this is something you require, contact an employment lawyer at Helix Law.
- Be aware that each side usually pays its own legal costs (find out about Helix Law’s Employment Tribunal costs here), but in the event that one side is considered to have behaved unreasonably, the Tribunal may award some costs against them.
- The Tribunal’s decision may be announced when the case ends, or you may have to wait a few days. Both sides are issued with a written version of the decision detailing the reasons for the verdict. You may appeal the decision to the Employment Appeals Tribunal if you find it unsatisfactory within 42 days of notification of the decision. Always obtain legal advice before making an appeal.
Acas (The Advisory, Conciliation and Arbitration Service, a public body of the UK government) is given power by the Employment Act 2008 to conciliate disputes in Employment Tribunals.
Employees must go through conciliation with Acas before starting a Tribunal claim. They must complete an EC (Early Conciliation) form online, and then Acas will attempt to facilitate a settlement between the employer and employee. In the case that a settlement is not reached, or one party fails to engage, an EC certificate will be issued so that the employee can take their claim further.
Yes, though workplace relationships are taken into account, and if they are considered to be irreparably damaged, then reinstating the employee to their former job is considered not practicable. They can also give the option to ‘re-engage’ the employee, meaning to reinstate them in a different but similar role. In any case, a decision of this form is quite rare.
If you refuse to comply with this demand, the employee can make a further complaint to the Tribunal which is then likely to order compensation. This compensation is likely to include an extra award seeing as you did not comply with the original decision. However, if you make a sufficient argument as to why the employee should not be reinstated, the additional award could be waived. Obtain legal advice promptly before making any appeals or arguments against a Tribunal’s decision.
Three months from the termination of employment is the deadline in which employees must make unfair dismissal claims. After this date, the claim may be barred unless there are found to be special circumstances that prevented them from presenting their claim within that timeframe. The deadline may also be extended in some discrimination cases.
If you receive an ET1 form from a former employee outside of this time frame, you should still complete and return your ET3 form, but state clearly that the claim has been made out of time as part of your defence. You should also request a preliminary hearing to determine why it was made out of time and how this affects the claim. The claim may still go to Tribunal for a number of reasons even if it was made out of time.
In this case, you should request a pre-hearing review. If the ex-employee’s case is weak, they will be advised ‘not’?… to continue with their claim. Most unreasonable cases will cease to progress from there.
If they still decide to pursue it, they’ll likely be asked for a large deposit (up to £1,000) and will be warned about the significant legal costs they will face in the likely event that their case is unsuccessful. This step is a further deterrent to stop the employee from taking the case to Tribunal.
In most cases that go to an Employment Tribunal, both sides are liable for their own costs. However, if a case is considered unreasonable or misconceived by the Tribunal, it may award up to £20,000 in costs to the other side.
If you can settle on reasonable terms outside of court, it makes sense to do so. However, it is worth considering fighting the claim if:
- You can prove the other party is wrong, but they are refusing to see it
- There are circumstances that are likely to have a significant effect on an award you are ordered to pay
- You consider that settling out of court will set a detrimental precedent to other employees and bring about more trouble in the future
Do not make these decisions alone – seek the advice of a lawyer with experience in Employment Tribunals by contacting Helix Law.
Yes – there are two ways to do this.
- COT3 settlement – if you settle through Acas you can get a COT3 settlement which is a legally binding agreement that stipulates that neither side can reinstate the claim at a later date.
- Settlement agreement – formerly known as a ‘compromise agreement,’ this means that the employee agrees to waive their statutory employment right for an agreed settlement for which they’ve received independent legal advice (usually paid for by the employer). Acceptance of this settlement prevents the employee from bringing back the claim. Settlement agreements must be drafted carefully, as legal decisions based on the effectiveness of settlement agreements in the past have gone against employers due to the wording involved. Always obtain legal guidance when creating a settlement agreement.