Defending tribunal claims: frequently asked questions

Sarah-Marie Williams of Clyde & Co LLP continues a series of articles on defending employment tribunal claims with some frequently asked questions that look at the procedure before and during employment tribunal hearings, and how tribunal judgments are issued. Questions about settling claims are also answered. 

What should an employer do if it receives an employment tribunal claim form?

If an employer (referred to in tribunal proceedings as a "respondent") receives an employment tribunal claim form (ET1) it should consider its response and present a defence to the claim to the tribunal within 28 days of being sent a copy of the claim form. The employer must respond on the prescribed form (ET3). It should provide all the required information on the ET3, including its own details, whether or not it wishes to resist the claim in whole or in part, and if it does, on what grounds. The tribunal can refuse to accept an employer's defence if it is not submitted within the 28-day time limit or on the correct form, or if it does not provide all the required information. Therefore it is imperative that employers provide all the required information on the ET3.

What should an employer do if it is unable to submit its defence within the 28-day time limit?

If an employer is unable to comply with the 28-day time limit, it should make an application to the employment tribunal for an extension of time to submit its defence. If the employer fails to apply for an extension of time it could be prevented from defending the proceedings.

Can an employer ask for further information about a claimant's case?

Yes. Either party may ask for further information about the other side's case by requesting "further and better particulars" of the information set out in the ET1 or ET3, as applicable. Requests are usually made in the form of questions on specific statements on the other side's claim or response form. If the party that has been asked for further and better particulars does not respond within a reasonable time frame, the other party can apply to the tribunal for an order for the information to be provided.

What is the process for settling claims through Acas?

Once proceedings have been commenced, the tribunal notifies the parties that the services of an Acas conciliation officer are available to them. Acas conciliation officers normally contact the parties to discuss whether or not they are interested in pursuing settlement discussions. Conciliation officers attempt to reach an agreement between the parties, normally in relation only to the claims brought to the tribunal. Settlements are recorded on a COT3 form and, once agreed, are binding. Acas notifies the tribunal that the claim has been settled. If the parties fail to reach an agreement, the claim proceeds to the tribunal.

What is a compromise agreement and what are the conditions for it to be valid?

If the parties wish to reach a settlement without involving Acas, they normally negotiate a settlement through a compromise agreement.

A compromise agreement is a written agreement between the parties that records the terms and any payment to be made to the employee in return for a waiver of claims by him or her. The compromise agreement must comply with the requirements of s.203 of the Employment Rights Act 1996, for it to waive effectively the employee's right to bring claims against the employer. These include the requirement 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.

What are case management discussions?

Case management discussions are interim hearings conducted by an employment judge in private. They usually deal with matters of procedure and the management of the proceedings. Unless a claim is straightforward the tribunal usually arranges a case management discussion as a matter of course, once it has received the ET1 and ET3. Case management discussions are usually conducted at the tribunal but may be conducted by telephone provided that the employment judge or tribunal considers it just and equitable to do so. Case management discussions generally enable the tribunal to identify the issues between the parties, give any necessary orders (for example, for further particulars, in respect of disclosure issues or in respect of the exchange of witness statements), and set a timetable for the future conduct of proceedings with reference to a hearing date.

How are documents disclosed?

Tribunals usually direct that all documents held by a party that are relevant to the claim should be disclosed to the other party. The normal practice for disclosing documents is for each party to prepare a list setting out its relevant documents and to exchange lists with the other party on an agreed date. Either documents are sent with the lists or the parties request copies of documents following the exchange of lists. The parties then agree a joint bundle of documents to be used at the tribunal hearing.

How is the tribunal panel comprised?

The tribunal panel is made up of an employment judge, who is legally qualified, and two lay members. One lay member represents the interests of employers (for example someone with a background in management or human resources) and the other represents the interests of employees (for example someone with trade union experience).

Can some cases be heard by an employment judge sitting alone?

Yes. Certain cases (specified in s.4(3) of the Employment Tribunals Act 1996 and including breach of contract and redundancy pay claims) can be heard by an employment judge sitting alone. Factors relevant to whether or not claims covered by s.4(3) will be heard by the judge sitting alone include the likelihood of there being a dispute on the facts or an issue of law, the views of the parties as to whether or not the case should be heard by a judge sitting alone, and whether or not there are other proceedings that might be heard concurrently, which the employment judge does not have jurisdiction to hear alone.

How do tribunals deal with witness evidence?

Tribunals generally direct that witness evidence must be provided in the form of witness statements to be exchanged between the parties on an agreed date in advance of the hearing.

At the hearing witnesses give their evidence under oath. They are asked to read their statement to the tribunal, or the tribunal panel may decide to read the statement in private. Witnesses may be subject to cross-examination by the other side, and questioning by the tribunal panel.

Which party gives evidence first at tribunal hearings?

The party that has the burden of proof usually gives its evidence first. Therefore the employer gives its evidence first in unfair dismissal claims (unless there is any dispute about whether or not the claimant was dismissed). In discrimination or constructive dismissal claims the claimant employee or ex-employee goes first. However, the employment judge may decide that he or she wants to hear from the other party first and ask the employer to start the evidence, particularly where there is a mixed burden of proof, for example where the claim is for unfair dismissal and discrimination.

What are the potential consequences of not appearing at the hearing?

If the claimant fails to appear at the hearing, either in person or through a representative, the tribunal may dismiss the claim. If the employer fails to attend it may be prevented from taking any further part in the proceedings. Alternatively, in either case, the tribunal may adjourn the hearing to a later date. If a party is unable to attend the hearing for unforeseen reasons it should contact the tribunal at the earliest opportunity to request an adjournment.

How are tribunal judgments given?

Tribunal judgments may be given orally at the end of the hearing or reserved and a written judgment issued subsequently. The tribunal may also give its reasons for the decision orally at the end of the hearing or issue written reasons later. If the tribunal gives oral reasons, it will give written reasons only if one of the parties requests them, which it must do either at the hearing or in writing within 14 days of the date on which the judgment is given to the parties.

Do tribunal judgments deal with liability and remedy?

A tribunal judgment may deal with liability and remedy, or it may deal with liability only, in which case the tribunal may schedule a subsequent hearing to determine the question of remedy. Whether or not the remedy is included in the judgment often depends on the evidence that has been presented to the tribunal. For example, the tribunal may not have heard details about the claimant's losses at the original hearing, in which case it will be unable to rule on remedy.

Do employers have to pay costs if they lose the case?

Tribunals do not normally make an order requiring one party to pay the other's legal costs. Costs do not follow the event in tribunals as they do in the civil court where the losing party pays a proportion of the winning party's legal costs. Tribunals generally make costs orders against one of the parties only where they are of the opinion that the party or its representative acted vexatiously, abusively, disruptively or otherwise unreasonably, or that the bringing or conducting of proceedings was misconceived.

Is there a right of appeal against the decision of the tribunal?

Yes. Either party can appeal against the tribunal decision to the Employment Appeal Tribunal, on a point of law. Appeals cannot be brought merely on the ground that the appellant is unhappy with the outcome.

The next article in this topic of the week series will be a checklist to help employers prepare for employment tribunal hearings and will be published on 29 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.