Defending a claim in the Employment Tribunal

What should you know about defending a claim in the Employment Tribunal?

  • The legal costs you may incur if you decide to defend the claims.
  • Your prospects of success.
  • The potential cost if you are unsuccessful in defending the claim.
  • The management time you may have to commit to defending the claim.
  • The commercial reality of trying to settle the case early.

Early conciliation and ACAS

From May 2014 it will be mandatory for all employees who wish to pursue a claim in the Employment Tribunal to contact ACAS before making their claim. This means that you will hear about the employee’s intention to pursue a claim from the assigned ACAS officer before you receive a copy of their claim form.

If you decide not to enter into settlement negotiations via ACAS the employee may then pursue their claim to the Employment Tribunal.

How to start defending a claim

You must submit your response to the Tribunal using the standard ET3 form and this must be received by the Tribunal within 28 days of the date it is sent to you.

Normally the Tribunal will include an ET3 form with the notification and they will also confirm the deadline for responding.

You can also find a copy of the ET3 form online by clicking here

Not enough time to respond – Extension of time

If you are unable to submit your response within the deadline of 28 days you can apply for an extension from the Employment Tribunal.

The Employment Tribunal will consider if it is just and equitable to grant an extension of time and therefore it is important to include full reasons why you are unable to complete the response in time.

What happens after you send back your ET3 defence?

The Employment Tribunal will send a copy of your defence to the employee, known as the Claimant.

The paperwork will then be considered by an employment judge who will decide from the paperwork if the claim or your response, should be struck out, either in full or in part, because it has no reasonable prospects of success.

The judge will also consider whether the claimants claim can be dealt with within the Employment Tribunal’s jurisdiction. If not the claim, or parts of it will be struck out.

If the judge decides the case should proceed they will decide on any case management requirements in readiness for the final hearing.

Case management order or preliminary hearing

Following the ‘sift’ stage the judge will either issue a case management order, setting out a timetable for preparation for the final hearing and/or order that a preliminary hearing take place.

Case management order

The case management order will set out the preparation needed and a timetable for completion and it will typically include the following:

  • Preparation by the Claimant of a Schedule of Loss setting out the amount being claimed.
  • Exchange with the Claimant a list of evidence which is important to the case or which you intend to rely upon.
  • Disclosure of documents to the Claimant from your list and requesting documents from the Claimant’s list.
  • Preparation of a bundle of evidence for the final hearing.
  • Preparation and exchange of witness statements.

You may also have to prepare a chronology of events, a ‘cast list’ of people involved and if you are represented your representative may have to prepare a list of issue and/or a skeleton argument.

Preliminary hearing

The judge may decide that a preliminary hearing is necessary and this can take place in person at the Employment Tribunal or by telephone. Usually they will last for about 1 hour, and during the hearing the Judge can:

1.            Clarify the issues the tribunal will need to determine at the final hearing.

2.            Determine the steps the parties will need to take to prepare the claim for the final hearing.

3.            Issue case management orders requiring steps to be undertaken.

4.            Explore the possibility of settlement or alternative dispute resolution between the parties.

In some cases the preliminary hearing can also be converted to a final hearing to determine the claims.

For full details about preliminary hearings please send an email to alison@alisoncolley.co.uk with the word ‘preliminary hearing’ in the title line.

How to prepare to defend?

When you receive the claim form it is easy to become caught up in being upset at the claim and trying to defend it.  There are however a number of steps that you can take from the outset of receipt that will assist your defence in the long run.

1)      Gather your evidence

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.

2)      Interview relevant witnesses

Time can also effect a person’s recollection of events, which means that the sooner that you can interview someone about the allegations and their version the better. Put this in writing and ask them to sign. Even better would be to go one step further and prepare draft witness statements which can be reviewed and amended once all of the evidence has been gathered.

3)      Get advice

Even if you are happy to run the case yourself and defend it, it is easy to become entrenched in your position. Obtaining advice at an early stage will assist your preparation and may save you time and money in the long run.

4)      Consider settlement

After the introduction of early conciliation you may have already considered this with the ACAS officer. Now that the employee has actually followed through with their threat to pursue a claim you may wish to consider making a ‘commercial’ offer to end the case without further costs and management time on your part.

I hope that the information provided will assist you in defending a claim in the Employment Tribunal.

Please remember however that the information provided is a summary of the law as it stands at the time of writing (April 2014) and as employment law changes fairly rapidly you should check the up to date position. The advice contained on this website is also not a substitute for obtaining advice that is specific to your circumstances, this is for information only and should not be relied upon.

I would be happy to provide you with tailored, affordable HR and legal advice. Please do not hesitate to contact me at alison@alisoncolley.co.uk