The number of Employment Tribunal claims has risen by 150% since the abolition of Tribunal fees in July 2017. Although there have been some hints that the Government is contemplating re-introducing ET fees, this won’t be happening any time soon. Their ‘to do list’ is quite long at the moment, plus it’s clear that if they are ever re-introduced fees, these will be at a much lower level than previously.
Ultimately, increased claims are here for the foreseeable future with a significantly increased chance that one day you may receive an ET1 claim form in the post.
On top of that, after years without a significant risk of their organisation being taken to an Employment Tribunal, many HR professionals may feel ill-equipped (or at least a bit rusty) if an ET1 claim form lands on their desk.
So, what should you do if or when you receive an ET1 claim form?
As part of Menzies Law’s celebration of our 10 year anniversary, here are 10 recommended steps…
1. Immediately put a note in your calendar of the deadline for submitting your response to the Tribunal. You have 28 days from when the ET1 is sent to you to submit your ET3 response form. The Tribunal will confirm the deadline to you in its ‘Notice of Claim’ covering letter. You need to write that deadline in bold, circle it in red and underline it and set yourself several reminders.
Why is that so important? Tribunals are very unforgiving indeed with late responses. If you miss the deadline you will be prevented from defending the claim at all. This is clearly something to be avoided.
We have had employer clients where the HR Manager has gone on leave or gone sick and no-one was checking their post, but there was an ET claim sitting on their desk. Even in this situation there is no guarantee that a Tribunal will extend the deadline for your response so you need to put in place systems to make sure you don’t get any nasty surprises.
You may well have had the ‘heads up’ that a claim is coming. A Claimant has to go through the ACAS Early Conciliation process before being allowed to submit an ET claim, and of course as part of the Early Conciliation process ACAS has to call you to discuss the threatened claim. However, it is possible for Claimants to instruct ACAS to not contact their employer at all during the Early Conciliation process, so you can’t be certain that you will always be forewarned about a claim.
2. Check if you have an insurance policy that covers Tribunal claims by employees. Personal injury claims are dealt with under your organisation’s mandatory Employer’s Liability Insurance (ELI) policy, but this does not mean that you are covered for Tribunal claims too. Any Tribunal claims cover you have will sit not on your ELI policy but under some separate cover. This may be part of another insurance policy, or part of your membership of a trade association or similar.
3. If you find you do have Tribunal claims cover, look at what you’re covered for and quiz your insurer carefully. For example, can you use any lawyer or must it be the insurer’s choice? If the latter, what level of qualification are their lawyers and is it a reputable law firm? Does the cover only apply if you rang their helpline and followed their advice about the case previously? Can the insurers force you to admit liability even if you don’t want to? Can they force you to fight the claim even if you don’t want to?
4. Gather and preserve all paperwork. Find the employee’s personnel file and make sure it is up to date. Scan and safely save all hard copy documents, such as letters and signed contracts of employment.
5. Find and secure all electronic documents too. Do a search of your server, including your HR team emails, the employee’s emails and their manager’s emails, for all relevant documents and correspondence. Ensure all relevant documents and information are preserved and cannot be deleted (intentionally or accidentally) by anyone but the HR team. (We understand that some German-owned companies automatically delete all emails after 6 months – not a position you’d want to find yourselves in if you were trying to defend a claim.)
6. Speak to everyone named in the claim and get their response, in writing, to the allegations made against them, as soon as you can. Doing so while it is fresh in their minds is advantageous. It also helps if they leave your organisation, since you may struggle to contact them or convince them to appear as a witness if they are no longer your employee. Currently, Tribunal hearings are being set for up to 18 months after the claim was received, so it could be that witnesses at the main hearing are having to recall events that happened up to 2 years ago. The loss of witnesses and the loss of clear memories are both real risks for employers. So preserving evidence is critical.
7. If any important witnesses do leave, do your best to secure their agreement and co-operation in terms of still being a witness for you. Bear this in mind when negotiating any exit package for them!
8. Get good legal advice from the start. Modern ET claims and the rules of ET claims procedure are getting more and more complex and no employer should contemplate defending an ET claim without an employment lawyer. Naturally, we’d love to be your employment lawyers, although of course “other” lawyers are available!
9. Look at each element of the claim and start working out your responses. What facts do you agree with and what don’t you? It is incredibly helpful for your lawyer if you can provide this analysis right at the start, so that you and your lawyer can then think about how the law applies to the facts. This will allow for a swift and accurate drafting of you ET3 response. There are few things worse than finding out later on (often many months later, when you are writing up your witness statements) that an important fact or a line of argument in your ET3 response is wrong or was misconstrued.
10. If the Claimant is no longer employed and is seeking compensation for loss of earnings (as they often are) then you ought to start to gather evidence to help with arguments over how much that should be if you don’t win the case. Any new earnings by the Claimant will be off-set against what you might owe. Also, any failure by the Claimant to take reasonable steps to find new employment will be relevant and could count in your favour. So the sort of information that will be useful is local jobs for which the Claimant could be suited and which have a similar level of remuneration. You should diarise to do that search on a regular basis until the case concludes or is settled. Putting it bluntly, your aim would be to persuade the Tribunal (if you lose) that the Claimant has not taken reasonable steps to “mitigate their loss” and so any loss of earnings compensation should be reduced as a result of their slackness.
In my next blog I’ll look at the key things you can do to avoid (or at least lower your risk) of getting an ET1 landing on your desk in the first place.
In the meantime, if you feel ill-equipped to deal with a current (or looming) Tribunal claim, just don’t have the time to do so or need some advice on how best to defend a claim, do please get in touch with me.
Email Anne-Marie or call 0117 325 0924