The number of employment tribunals held in the UK has been decreasing in recent years – in part due to the tightening of rules and the introduction of issue and hearing fees for claimants. As a result, it is likely that disgruntled employees will continue to press their claims for unfair dismissal. If your business is suddenly served with a claim, it’s vital that you and your colleagues know exactly how to defend it.
The first steps of defending an employment tribunal claim
As soon as you become aware of an unfair dismissal claim, you should seek employment law advice from specialist lawyers. Your legal representatives will work closely with you to ascertain the facts, and to decide whether the claim is spurious or requires serious consideration. Factors to consider might include:
1. How likely is a successful defence?
2. Is settling with the claimant a more cost-effective course of action than defending the claim?
3. How much is a tribunal judge likely to award if the claimant is successful?
4. What will be the legal costs of mounting a defence?
5. Will a defence harm the reputation of your business?
6. How much of your company’s precious time will need to be devoted to a defence?
Once you and your legal representatives have carefully considered these questions, you will need to respond to the claim.
Filing a response
You will need to file a response within 28 days – using an ET3 form. This should be done regardless of whether you intend to settle, as a failure to file a formal response will mean you can’t defend the claim should settlement negotiations prove unsuccessful. Employment lawyers will help you to complete the form, and carefully list your reasons for defending the claim.
Preparing for the tribunal
Whether settlement negotiations are planned or not, it is always a good idea to proceed as if they weren’t. Preparations will include gathering any relevant witness and character statements, as well as the collation of official documentation such as incident reports, meeting notes and records of previous disciplinary action.
Claims will be made on the basis of lost income, including any time spent unemployed as a result of the dismissal. In the event that you lose your defence, you and your legal team will need to minimise the compensation payable. The amount claimed by your former employee can be disputed with copies of recent job adverts – proving that other positions were available.
Your legal representatives will work tirelessly to ensure that witness statements are complete and wholly accurate. They will consult with your witnesses and ensure they are familiar with the tribunal procedure and remind them of key issues in the case and give general tips on what to do and not to do.
Can the case be settled?
An employment tribunal can be a costly and damaging process to go through – for both your organisation and your former employee. It is usually in the best interests of both parties to settle before the costs start to mount. The Advisory, Conciliation and Arbitration Service (ACAS) will be sent copies of claim and response forms, and they will provide assistance to both you and the claimant where necessary. The involvement of ACAS can get you around a table with your former employee – something that could facilitate a speedy conclusion to the claim.
Of course, the best way to approach employment tribunals is to stop them from happening. Complying with employment legislation, intervening in work-based issues before they become serious, keeping comprehensive records of disciplinary procedures and treating your employees with dignity and respect. This should prevent the majority of cases from getting as far as a tribunal judge. However, if that does happen, having the advice and guidance of expert employment lawyers is invaluable. Employers need to understand that by having the correct contracts and policies in place a majority of claims can be prevented and should be seen as best practice.