What to do when you receive an employment tribunal claim

If you receive an employment tribunal claim - an ET1 form - Mark Stevens, a solicitor at Veale Wasbrough Vizards, says the priority is to check the initial action required: “Employers have 28 days from receipt of the ET1 to respond to the claim by filing form ET3 with the appropriate employment tribunal. If you do not comply with the deadline, the employment tribunal may enter a default judgment against you,” writes Adam Bernstein.

Firms should always check that the employee has submitted their claim(s) within the allotted time. The general rule is that an employee has three months from the termination of their employment to contact ACAS in order to initiate pre-claim conciliation.

If the worker is alleging discrimination, they have three months from the date of the alleged discriminatory act or the last event in a series of discriminatory acts about which they are complaining to contact ACAS. For wages claims, a worker will have three months less one day from the date that the wages were due to be paid to contact ACAS. The employee or worker will also need to confirm that it has complied with pre-claim conciliation by setting out details of its ACAS Certificate Number on the ET1.

Stevens explains that some legal protections only apply to employees - for instance claims of unfair dismissal and for a statutory redundancy payment. “If a claimant is arguing unfair dismissal and they were engaged as a worker, then the employer should raise this in the ET3. Generally speaking, an employee can only pursue an unfair dismissal complaint against their employer once they have at least two years service.”

It’s interesting to note that claimants sometimes pursue the wrong employer. “It may be that you have been incorrectly identified as the employer liable for the claimant's claim - for instance as a result of a TUPE transfer,” says Stevens.

If a resolution cannot be reached the case may proceed to a hearing and witness evidence will be required from those involved in the events and issues giving rise to the claim. Stevens strongly suggests taking initial statements from relevant employees.

“You should also begin to collate any relevant documents and put together your version of events and chronology.” The disclosure process will require all relevant evidence to be sent to the claimant. It’s for this reason, that all involved should be told to preserve documents.

Sometimes the claims will be unclear. Stevens advises that if the ET1 is vague, part incomplete or contradictory then an employer could consider serving the employee with a request for Further and Better Particulars of the Claim. “This will allow for specific questions to be put to the employee regarding the unclear parts of their claim. Employers should always take advice before issuing a request here. Remember - this can give the employee a second opportunity to get their claim into shape.”

Lastly, settlement should always be considered, particularly if it appears that the employee has a good chance of a successful claim. Stevens adds other factors into the mix: “The possibility of any adverse publicity, damage to reputation and the time and legal fees required to defend any claim. An early settlement could make good commercial sense.”

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