Defending tribunal claims: checklist

Sarah-Marie Williams of Clyde & Co concludes a series of articles on defending employment tribunal claims with a checklist to help employers prepare for tribunal hearings. Employers that familiarise themselves with employment tribunal procedure in advance of a hearing and ensure that witnesses know what to expect may be better equipped to defend claims successfully. 

1. Comply with the 28-day time limit for presenting a defence to an employment tribunal claim. 

An employer (referred to in tribunal proceedings as a "respondent") that receives a tribunal claim form (ET1) should present a defence on the prescribed form (ET3) within 28 days of being sent a copy of the ET1. If the employer is unable to submit its defence within the time limit it should apply to the tribunal for an extension of time. If the employer fails to take any action when it receives an ET1 the tribunal is entitled to use its discretion to issue a default judgment, in which case the employer is prevented from taking any further part in the proceedings.

2. Request further and better particulars if necessary.

If the employer is uncertain about the nature or grounds of the case against it, or if it requires further information about the claimant's case, it can ask the claimant for further information by requesting "further and better particulars". Requests for further and better particulars are usually made in the form of a series of questions on specific statements set out in the ET1. If the claimant does not respond to a request for further information within a reasonable time frame the employer can apply to the tribunal for an order for the information to be provided.

3. Consider whether or not to try to settle the case.

Employers can save time and costs by settling cases before they go to tribunal. However, when negotiating a settlement figure, employers need to consider carefully the likely compensation (if any) that the tribunal might award if the case were to proceed to a hearing.

Once proceedings have been commenced the tribunal notifies both 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 claim and seek to settle the proceedings. Acas officers normally contact the parties to establish whether or not they are interested in pursuing settlement discussions. If a settlement is reached the details are recorded on a form COT3. Acas notifies the tribunal that the claim has been settled.

If Acas is not involved in the negotiation of a settlement, it will not "rubber stamp" it and the parties need to use a compromise agreement instead. This is a written agreement between the parties that records the terms and payment to be made in return for a waiver of claims by the employee. A compromise agreement must comply with the requirements of s.203 of the Employment Rights Act 1996 to ensure that the employee's right to bring claims against the employer is waived effectively. This includes a requirement for the employee to receive advice about the agreement and waiver of claims from an indemnified "relevant independent adviser" who must sign an adviser's certificate or the compromise agreement to confirm that he or she has advised the employee as to the terms of the agreement and the waiver of claims. (See Defending tribunal claims: before the hearing in this series for more details on compromise agreements and the definition of "relevant independent adviser".)

4. Be prepared to attend a case management discussion.

On receipt of the ET1 and ET3 the tribunal contacts the parties to provide them with a timetable of steps for both parties to take up to the date of the hearing. Alternatively, it may direct the parties to attend a case management discussion to agree the timetable up to the tribunal hearing. Case management discussions deal with matters of procedure and the management of the proceedings. An employment judge identifies the issues between the parties, gives any necessary orders and decides on the length and date for the full hearing. These hearings are generally conducted at the tribunal but may be conducted by telephone if the employment judge or the tribunal considers it just and equitable to do so.

5. Comply with disclosure obligations and collate the required documents.

Employment tribunals usually direct that all documents that are relevant to a case should be disclosed by the parties to one another before the hearing. The normal practice is for both parties to prepare lists setting out their relevant documents and exchange lists with the other side. Where possible the parties send copies of the documents with the lists. If copies are not sent the parties request copies of the documents that they wish to see from the other side's list. The parties then agree a joint bundle of documents to be used at the tribunal. If one of the parties objects to a document being included in the bundle or has a dispute about the disclosure of documents it can apply to the tribunal for an employment judge to decide on the matter. This is often done through a case management discussion.

6. Decide who should appear as a witness and prepare witness statements.

Tribunals generally direct that witness evidence must be provided in the form of witness statements. An employer that is defending a tribunal claim should carefully consider who it wants to appear as a witness to give evidence on its behalf. The employer should ensure that statements are prepared for all witnesses. Statements are subsequently exchanged between the parties on an agreed date in advance of the hearing.

7. Become familiar with the format of tribunal proceedings before the hearing.

Tribunal hearings are generally open to the public and employers that are due to defend a tribunal should attempt to watch another hearing in advance of their own case to see how tribunals are conducted.

When they arrive at the tribunal respondents and claimants and their representatives and witnesses should sign in at reception so that they can be given the correct hearing room and allocated a waiting room. There are separate waiting rooms for respondents and claimants. Tribunal hearings usually start at 10am and finish at 4pm with a break of an hour for lunch. Tribunals are heard by a panel made up of an employment judge, who is legally qualified, and two lay members, one representing the interests of employers and the other the interests of employees. Normally the party that has to satisfy the burden of truth gives evidence first after both sides have made opening submissions outlining the claim or defence, as applicable.

8. Prepare witnesses for the tribunal hearing.

Appearing as a witness at a tribunal hearing can be a daunting experience. Employers should ensure that their witnesses are prepared for the hearing and know what to expect. When they are called to give evidence witnesses take an oath on the holy book appropriate to their faith or make a civil promise or affirmation. The tribunal may require them to read their statement out loud or it may read statements in private. When witnesses have given their version of events the other side's representatives can question them by way of cross-examination. If new matters arise the party whose witness is giving evidence can re-examine him or her on the new issues. Tribunal panel members may also question witnesses. See previous topic of the week article Going to tribunal: checklist for more information on the preparation and attendance of witnesses.

The next topic of the week article will be the first in a series on dealing with employee bereavement and will be published on 5 October.

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.