Our six top tips for defending an Employment Tribunal Claim

Recent high-profile Employment Tribunal claims (such as the case of a new mother who brought a claim for constructive unfair dismissal and discrimination against Morrisons) have reminded employers of the consequences of getting their HR and employment procedures wrong.

In the Morrisons case, the employer dealt badly with its employee’s return to work from maternity leave and tried to force her to carry out her old full-time role in part-time hours. She resigned and was awarded £60,000 in compensation by the Employment Tribunal.

Employment Tribunal Claim Process

So, what happens when an employee brings an Employment Tribunal claim against your business and what can you do to maximise your chances of defending the claim?

Normally, you will find out about an employment tribunal claim when you receive an “ET1 form” in the post from the Employment Tribunal. This will set out what type of claim your employee has brought (for example, discrimination or unfair dismissal) and what they say happened. Once you receive the claim, you will only have 28 days to send your defence (called an “ET3 form”) to the Employment Tribunal – so it’s crucial to act straight away when you are sent a Tribunal claim. If you miss this deadline, then you could have judgement entered against you or be prevented from taking part in the proceedings.

Defending an Employment Tribunal Claim

We recommend you take the below initial steps to when faced with a claim to put yourself in the strongest possible position:

1. Check whether your business has an employer’s legal expenses insurance policy in place to cover your costs. If so, it could mean that your insurer will pay all your legal fees for defending an Employment Tribunal claim.
2. Consider whether the employee has brought the claim in time – this may not be obvious because the limitation date may have been extended by ACAS early conciliation. If the claim is out of time, then it might be possible to have it struck out.
3. Seek legal advice at an early stage. It is important to instruct an employment law solicitor to draft your defence to the claim, as this will put you in the best position going forward.
4. Gather and preserve any documents you have which could be relevant to the Employment Tribunal claim. For example, your employee’s employment contract, any HR policies and procedures (such as your disciplinary or grievance policy), and emails and WhatsApp messages about the dispute could all be relevant evidence.
5. Think about who your witnesses should be. Employment Tribunal proceedings can be very lengthy and it will help if your witnesses can give evidence to your solicitor at an early stage in the process while their memories are fresh.
6. Consider whether settling the claim could be appropriate. While you may believe the claim to be misguided and want to defend it, sometimes it’s actually more cost effective for the business to pay a settlement to the employee. There are pros and cons to settling and our employment law solicitors can advise you on when settlement is the best option in the particular circumstances, and at what point in the process to make an offer of settlement to the employee.

If you have questions on any of the points raised in this article, please get in touch with Musab Hemsi or your regular Anderson Strathern contact.

You may also be interested in the following articles:

• How the flexible working movement could shape future employment standards
• Unpaid trial shifts – the employment law implications
• Restrictive covenants – our top ten tips for employers and employees

Legal disclaimer