Defending tribunal claims: before the hearing

Sarah-Marie Williams of Clyde & Co LLP begins a series of articles on defending employment tribunal claims with an overview of the steps that employers must take, and the procedure that applies, prior to the hearing. Employers must respond to employment tribunal claims within the 28-day time limit and may attempt to settle claims, with or without using the services of Acas, before the hearing. 

Responding to a claim

Tribunal proceedings are commenced when an employee lodges (by fax, post or electronically) a claim form at the employment tribunal. Employees must use the prescribed form (ET1) to lodge a claim. On receipt of the ET1 the tribunal office checks that it has received the claim within the applicable time limit. Where the tribunal accepts the claim, it sends a copy of the ET1 to the named employer (which is referred to thereafter in the proceedings as the respondent). The employer must respond to the claim (also by fax, post or electronically) by setting out its defence on the prescribed form (ET3), a copy of which is sent to the employer from the tribunal and which is also available on the Tribunals Service website. This must be done within 28 days. If the tribunal does not receive a completed ET3 or an application from the employer for an extension of time to present its completed ET3, within 28 days, it is entitled to use its discretion to issue a default judgment and the employer is prevented from taking any further part in the proceedings.

Involvement of Acas/settlement

If the provisions for conciliation apply to the claim the tribunal notifies the parties that the services of an Acas conciliation officer are available to them. Conciliation officers act as impartial go-betweens for the parties involved in a tribunal and seek to settle the proceedings. Conciliation is available in relation to certain employment rights, defined in s.18of the Employment Tribunals Act 1996 (for example, the right not to be unfairly dismissed or subject to unlawful discrimination). Since 6 April 2009, when s.5 of the Employment Act 2008 came into effect, employees who claim that they have a potential tribunal claim but who have not yet started proceedings can call on the services of an Acas conciliation officer, who has discretion as to whether or not to conciliate between the parties.

Acas will participate in the settlement of a tribunal claim only if it is actively involved in the negotiation of the settlement. It will not simply "rubber stamp" a settlement that was agreed without its involvement. If the parties agree a settlement without the involvement of an Acas conciliation officer they need to use a different method, namely a compromise agreement. A compromise agreement is a written agreement between the parties that records the terms and any payment to be made in return for a waiver of claims by the employee. There are statutory requirements set out in s.203 of the Employment Rights Act 1996 with which the agreement must comply for the employee's right to bring claims against the employer to be effectively waived. This includes the need for the employee to receive advice about the agreement and waiver of claims from an indemnified "relevant independent adviser" who can be: a solicitor or barrister; an officer, official, employee or member of an independent trade union; or an employee or volunteer at an advice centre certified as competent and authorised to give such advice. The adviser must sign an adviser's certificate or the compromise agreement to confirm that he or she has advised the employee as to the terms and effect of the agreement and the waiver of claims. It is advisable for employers to ensure that compromise agreements also include a clause to the effect that the claimant agrees to write to the tribunal to withdraw his or her claim.

Acas settlements are recorded on a prescribed form (COT3) and, unless expressly stated otherwise, settlements cover only the claims brought in the tribunal. Some conciliation officers will not cover a "full and final settlement of all claims" (which is standard practice under a compromise agreement) and limit the settlement to those claims identified on the ET1. Once the parties have confirmed their agreement to the terms of the COT3 a verbal binding agreement is reached through Acas and neither party can change its mind about the agreement. Acas notifies the tribunal that the claim has been settled through conciliation.

Prior to 6 April 2009 certain claims were subject to a fixed conciliation period of either seven or 13 weeks. However, the fixed periods have been abolished and conciliation periods are not time limited.

The advantage to employers of settling in advance of a tribunal hearing is that this is likely to be more cost effective in terms of reduced legal fees and the use of management time to prepare for, and appear in, hearings. However, in some cases employers may pay more in the settlement than would have been awarded by the tribunal. Also, employers that routinely settle claims may inadvertently create a culture where employees bring claims against them in the knowledge that they are likely to achieve a pay-off without having their claim challenged.

Case management

Once a claim and response are accepted by the tribunal it will either write to the parties with a timetable of steps for both parties to take, or direct the parties to attend a case management discussion to agree a timetable up to the tribunal hearing. Case management discussions (formerly known as directions hearings) are interim hearings conducted by the employment judge in private and generally deal with matters of procedure and management of the proceedings. They may be conducted at the tribunal's offices or by telephone, provided that the employment judge or tribunal considers it just and equitable to do so.

During the case management discussion the employment judge identifies the issues between the parties, gives any necessary orders (for example in respect of the provision of further particulars, disclosure and a date to exchange witness statements) and decides on the length and a date for the full hearing.

Pre-hearing reviews

A pre-hearing review, which is an interim hearing, can be requested by one of the parties, or the tribunal can, of its own volition, call a pre-hearing review. A pre-hearing review may identify a weak claim or response. If, at a pre-hearing review, a claim is found to have little or no prospect of success, the tribunal may strike it out.

Disclosure

Tribunals normally expect that all relevant documents will be disclosed by the parties to one another before the hearing. The standard procedure for disclosing documents is for both parties to prepare lists identifying all the documents that they have that are relevant to the case. The lists are simultaneously exchanged on an agreed date and, if possible, copies of the documents are sent with the lists. If copies are not sent each party requests copies of the documents that it wants to see from the other side's list. The parties subsequently agree which documents from both lists should be put before the tribunal in a common, agreed bundle. If either party objects to a document being included in the bundle (or if there is some other dispute in respect of the disclosure stage) it can apply to the tribunal for an employment judge to consider the matter (often by way of a case management discussion) and reach a decision.

The tribunal orders that one of the parties prepares copies of the agreed bundle for the hearing. Copies must be made for the three members of the tribunal panel as well as a copy for the witness box and copies for both parties' representatives to use. There are no facilities for making copies at the tribunal.

Witness evidence

Witness evidence is generally provided in the form of written statements. Witness statements are normally exchanged between the parties on a date fixed by the tribunal before the hearing. Therefore, the parties are aware of what the other side's witnesses will say before they appear in person at the tribunal to give evidence. (See previous topic of the week article Going to tribunal: checklist for more information on the preparation and attendance of witnesses.)

Next week's topic of the week article will look at the procedure at employment tribunal hearings and will be published on 15 September.

Sarah-Marie Williams (Sarah-Marie.Williams@clydeco.com) is a solicitor at Clyde & Co LLP.

Further information on Clyde & Co LLP can be accessed at www.clydeco.com.