The first encounter many employers have with the Employment Tribunal is when they receive a copy of a disgruntled employee’s claim form. Michelle Gray explains how the system works and the options available if a defence is not successful.
The point at which an employer will first become aware that an employee is commencing legal proceedings against them is when they first receive their copy of the employee’s claim form ET1. The Employment Tribunal is required to send this to employers. This article considers the key stages in the ET process1. The Employment (Constitution and Rules of Procedures) Regulations 2004 enshrine the structure of the process.
Whilst the ET refers to the employee and employer (the parties) as the claimant and the respondent respectively, for the purpose of this article the writer has adopted the former titles.
Responding to a claim
When responding to an employee’s (or former employee’s) claim, it is imperative for the employer to use the correct form to lodge its response (ET3). The ET3 form will be supplied by the ET when the ET1 is sent to the employer, or it can be downloaded from the Employment Tribunal Service website. The completed ET3 can be presented to the ET by one of the following methods; post, fax, email, online via the ET website (www.employmenttribunals.gov.uk) or in person.
The employer must present its response to the ET within 28 days of the date on which it was sent a copy of the claim. If it is not practicable for the employer to respond to the claim within this time limit, it must make an application to the ET to extend the time limit, giving reasons why it is unable to comply with the deadline, and sending a copy of the application to the employee (or the employee’s representative).
An example of a legitimate ground to apply for an extension would be if the person in the employer’s business with knowledge of the employee’s allegations is on annual leave. Conversely, it is unlikely an application for an extension will be granted by the ET on the ground that the employer is engaged in a number of routine meetings. Ultimately, however, it is the ET judge’s discretion as to whether the application for an extension to submit the ET3 is granted.
Default judgments
If the employer does not file the ET3 within 28 days, the employer may automatically be precluded from taking part in the claim and a default judgment may be issued against it, which precludes an employer from taking part in the claim.
If a default judgment is issued, the employer may apply in writing to revoke it (‘set aside’) or vary it, within 14 days of the date of the default judgment being sent.
What can an employer do if it believes a claim is weak?
A pre-hearing review (‘PHR’) is an interim hearing. The ET may list a PHR of its own initiative, or following an application from either party. For example an employer can apply to the ET to ask a judge to determine whether the employee has sufficient service (one year) to claim unfair dismissal. In these circumstances an employer would want to argue that it believes the claim has little reasonable prospect of success; if successful an employment judge may order that the employee pay a deposit (not exceeding £500) as a condition of being permitted to continue with the claim.
Employer’s counterclaim
An employer can make a counterclaim for a breach of contract against a former employee only, but this is limited to circumstances when the former employee has brought a breach of contract claim (for example failure to pay contractual notice pay).
A counterclaim must be brought within six weeks of the employer receiving the former employee’s ET1. There is no prescribed form for making a counterclaim, however it is usual to include details of the counterclaim on the ET3.
What happens when the ET3 has been sent to the ET?
Once the ET3 has been filed, the ET will consider the information on the ET1 and ET3 and then issue orders (typically asking the parties to disclose documents and prepare witness statements by a certain date prior to the hearing). Alternatively, the ET may schedule a case management discussion (‘CMD’) for both parties (and/or their legal representatives) to attend in person, or, as can often be the case now, by telephone conference.
A CMD is an interim hearing conducted by an employment judge to discuss possible orders to assist in preparing for the final hearing. A typical hearing normally lasts one hour. A CMD is usually ordered in complex cases for example, in a claim alleging discrimination when medical evidence may be needed.
The hearing
The date of the hearing will vary depending on the length of the hearing and the tribunal centre (there are 25 in the UK), but a minimum of nine months from the date of the ET1 is usual.
If the employee’s claim is not settled or withdrawn at an earlier stage, it will proceed to a full hearing. The hearing will usually consist of an employment judge and two lay members, from organisations of employers and employees. It is customary to address the tribunal as ‘sir’ or ‘madam.’
Save for CMD hearings, all other hearings are public hearings. An application can be made for a hearing to be heard in private but this is on very limited grounds.
The tribunal will allow each party to present their respective cases by asking each witness to read out their prepared witness statements (normally exchanged before the hearing, in accordance with the orders – see above), and for each party to question the other party’s witness(es).
Time permitting; the ET will announce its decision at the conclusion of the hearing. If there is insufficient time to give a judgment on the day of the hearing the tribunal will send this in writing to the parties. This is known as a reserved judgment.
What if an employer is not happy with the judgment?
If the employer is unsuccessful, it may apply to the tribunal to review its decision (on limited grounds) within 14 days of the tribunal sending its written reasons. Alternatively, the employer may appeal to the Employment Appeal Tribunal (EAT) on limited grounds within 42 days of the tribunal’s decision being communicated with written reasons.
Postponing the hearing
If an employer cannot attend a hearing, for example if a material witness is ill, an application to postpone the hearing should be made as soon as possible. Full reasons for requesting a postponement will be required.
Costs
Costs are rarely awarded in ET proceedings; each side will usually pay their own costs. However, in rare circumstances the ET may order one side to pay the costs of the other. For example where the ET considers that the claim was so weak that it should not have been brought, or if either party behaved unreasonably in the way they have conducted the case.
The information is published for general information only and does not constitute legal or professional advice. You are advised to obtain specific professional advice in respect of individual; legal queries.
The point at which an employer will first become aware that an employee is commencing legal proceedings against them is when they first receive their copy of the employee’s claim form ET1. The Employment Tribunal is required to send this to employers. This article considers the key stages in the ET process1. The Employment (Constitution and Rules of Procedures) Regulations 2004 enshrine the structure of the process.
Whilst the ET refers to the employee and employer (the parties) as the claimant and the respondent respectively, for the purpose of this article the writer has adopted the former titles.
Responding to a claim
When responding to an employee’s (or former employee’s) claim, it is imperative for the employer to use the correct form to lodge its response (ET3). The ET3 form will be supplied by the ET when the ET1 is sent to the employer, or it can be downloaded from the Employment Tribunal Service website. The completed ET3 can be presented to the ET by one of the following methods; post, fax, email, online via the ET website (www.employmenttribunals.gov.uk) or in person.
The employer must present its response to the ET within 28 days of the date on which it was sent a copy of the claim. If it is not practicable for the employer to respond to the claim within this time limit, it must make an application to the ET to extend the time limit, giving reasons why it is unable to comply with the deadline, and sending a copy of the application to the employee (or the employee’s representative).
An example of a legitimate ground to apply for an extension would be if the person in the employer’s business with knowledge of the employee’s allegations is on annual leave. Conversely, it is unlikely an application for an extension will be granted by the ET on the ground that the employer is engaged in a number of routine meetings. Ultimately, however, it is the ET judge’s discretion as to whether the application for an extension to submit the ET3 is granted.
Default judgments
If the employer does not file the ET3 within 28 days, the employer may automatically be precluded from taking part in the claim and a default judgment may be issued against it, which precludes an employer from taking part in the claim.
If a default judgment is issued, the employer may apply in writing to revoke it (‘set aside’) or vary it, within 14 days of the date of the default judgment being sent.
What can an employer do if it believes a claim is weak?
A pre-hearing review (‘PHR’) is an interim hearing. The ET may list a PHR of its own initiative, or following an application from either party. For example an employer can apply to the ET to ask a judge to determine whether the employee has sufficient service (one year) to claim unfair dismissal. In these circumstances an employer would want to argue that it believes the claim has little reasonable prospect of success; if successful an employment judge may order that the employee pay a deposit (not exceeding £500) as a condition of being permitted to continue with the claim.
Employer’s counterclaim
An employer can make a counterclaim for a breach of contract against a former employee only, but this is limited to circumstances when the former employee has brought a breach of contract claim (for example failure to pay contractual notice pay).
A counterclaim must be brought within six weeks of the employer receiving the former employee’s ET1. There is no prescribed form for making a counterclaim, however it is usual to include details of the counterclaim on the ET3.
What happens when the ET3 has been sent to the ET?
Once the ET3 has been filed, the ET will consider the information on the ET1 and ET3 and then issue orders (typically asking the parties to disclose documents and prepare witness statements by a certain date prior to the hearing). Alternatively, the ET may schedule a case management discussion (‘CMD’) for both parties (and/or their legal representatives) to attend in person, or, as can often be the case now, by telephone conference.
A CMD is an interim hearing conducted by an employment judge to discuss possible orders to assist in preparing for the final hearing. A typical hearing normally lasts one hour. A CMD is usually ordered in complex cases for example, in a claim alleging discrimination when medical evidence may be needed.
The hearing
The date of the hearing will vary depending on the length of the hearing and the tribunal centre (there are 25 in the UK), but a minimum of nine months from the date of the ET1 is usual.
If the employee’s claim is not settled or withdrawn at an earlier stage, it will proceed to a full hearing. The hearing will usually consist of an employment judge and two lay members, from organisations of employers and employees. It is customary to address the tribunal as ‘sir’ or ‘madam.’
Save for CMD hearings, all other hearings are public hearings. An application can be made for a hearing to be heard in private but this is on very limited grounds.
The tribunal will allow each party to present their respective cases by asking each witness to read out their prepared witness statements (normally exchanged before the hearing, in accordance with the orders – see above), and for each party to question the other party’s witness(es).
Time permitting; the ET will announce its decision at the conclusion of the hearing. If there is insufficient time to give a judgment on the day of the hearing the tribunal will send this in writing to the parties. This is known as a reserved judgment.
What if an employer is not happy with the judgment?
If the employer is unsuccessful, it may apply to the tribunal to review its decision (on limited grounds) within 14 days of the tribunal sending its written reasons. Alternatively, the employer may appeal to the Employment Appeal Tribunal (EAT) on limited grounds within 42 days of the tribunal’s decision being communicated with written reasons.
Postponing the hearing
If an employer cannot attend a hearing, for example if a material witness is ill, an application to postpone the hearing should be made as soon as possible. Full reasons for requesting a postponement will be required.
Costs
Costs are rarely awarded in ET proceedings; each side will usually pay their own costs. However, in rare circumstances the ET may order one side to pay the costs of the other. For example where the ET considers that the claim was so weak that it should not have been brought, or if either party behaved unreasonably in the way they have conducted the case.
The information is published for general information only and does not constitute legal or professional advice. You are advised to obtain specific professional advice in respect of individual; legal queries.
[1] See also the guidance for employees (which has some useful pointers on procedure) available from the Tribunal Service website.