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The employment tribunal process - defending a claim from an employee

View profile for Stephen Woodhouse
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When an employee makes a claim against your business there are various stages of an employment tribunal process that you will have to go through. Here we will outline what you should expect during each of these stages and how we can help you to defend these claims before a tribunal.

ACAS conciliation

The first step for the claimant is to notify ACAS of their claim. This is called ACAS conciliation. They must lodge their claim with ACAS within three months less one day of the date of their dismissal or the date of the last act of discrimination they allege they have suffered. The first thing that you need to do is to check the dates to make sure that they have not lodged their claim outside of these time constraints. If they are outside of the time you may decide to not enter into settlement negotiations at all.

If they have lodged the claim in time, this is your chance to scrutinise the claims and assess whether you think that their claims have any merit. At this stage you may wish to request any documentary evidence that they have to support their claims. Regardless of the strength or weakness of the claim it is a good idea to consider having a commercial discussion at this point to avoid further time and cost being incurred at a later date. If a reasonable settlement can be reached at this point it will save time and cost in defending the claims at a later stage.

Claims lodged at tribunal

If early conciliation is unsuccessful then the employee will decide whether to lodge their claim at tribunal. Some employees choose not to take the claim further due to the pressure of employment tribunal proceedings. However, if a claim is lodged, it is advised that you check the dates again to make sure they are still within the time limit. If the time scales haven’t been complied with this should be brought to the attention of the tribunal with a view to the claim being struck out.

If the claim is accepted by the tribunal you will receive it and be asked to provide a response. Generally, employers have 28 days to provide a response and it is important that you address each allegation included in the claim. If there are any sections that aren’t clear to you then your response should contain a request for further information or clarification around that particular part of the claim. Given the technical and legal issues that arise at this point in the process, it is advisable to seek professional legal advice to make sure that the response is well pleaded.

Once the response has been received the tribunal will set out a list of tasks that each party must complete and present to the court or the other party. The claimant will be asked to produce a breakdown of the amount of compensation they are seeking. You will want to scrutinise the figures presented by the employee and if necessary provide a counter offer.

You will also be asked ar this stage to submit a list of documents that you will rely upon at the final hearing, whether or not these help or hinder your case. It is usually your responsibility as the respondent to prepare the bundle of documents and it is this agreed bundle that both parties will rely upon once the claim gets to a final haring. Once the bundle has been produced, you will be required to submit a witness statement. It is important that your witnesses can corroborate your version of events. For example, in an unfair dismissal case you would expect to call upon the investigating officer, the disciplinary officer and the appeal officer. These witnesses will be asked to attend the final hearing so bear in mind their ability and availability to attend as any failure by them to attend will undermine your defence.

At the final hearing, to maximise your chances of successfully defending the claim, we would always advise seeking professional legal advice and to have legal representation. Once the tribunal has considered all the evidence presented to them it will make a decision. The decision may be on the day of the hearing or they may take their time and you may only hear the outcome at a subsequent date.

Funding options

For companies or employers defending tribunal claims, there are typically two funding options available. The first option is paying privately and the second may be that you have an insurance policy in place that covers for these claims. It is worth checking at what point in the claim your insurance policy can be activated. It may be that you only receive legal assistance at the point when a claim is made against you, not necessarily to assist you through ACAS conciliation.

At Stephensons we offer HR support packages whereby, provided that a company follows our advice in the event that a claim is pursued against them, our packages are underwritten with a policy of insurance, and the legal costs will be covered for us defending the claims right up to a final hearing before a tribunal.

If you are a business defending a claim from an employee or former employee, and require advice and representation in relation to defence at an employment tribunal, call our specialist team of employment law solicitors on 0161 696 6170.