Get advice as early as possible
Many claims are lost or won long before the first day of the Employment Tribunal proceedings. The best way to defend or indeed fight an Employment Tribunal (ET) claim is to take advice or otherwise ensure that you are well informed at a very early stage.
For example, if you want to claim that you were forced resign to (“constructive dismissal”) a great deal is likely to turn on why you say you resigned in your letter of resignation.
If you face dismissal for gross misconduct, it is important to make the strongest possible case at your disciplinary hearing, since generally speaking a Tribunal will not take account of complaints not previously made during the disciplinary hearing.
Possibility of a settlement
ET cases are very expensive (£12,000 for a 2 day case) but while this is a problem for employees (unless they have legal expenses insurance) it is also a problem for employers. For this reason, they will often be willing to try and reach a negotiated solution. This will probably be by way of a compromise agreement – a legally enforceable agreement by which you agree to not bring proceedings against the employer in return for a sum of money.
For example, if you are facing redundancy, you may be offered a redundancy payment above the statutory minimum as part of a compromise agreement.
However the conditions governing the enforceability of such agreements are strict, and it is difficult to get it right without professional help. For this reason many employers prefer to involve an ACAS conciliation officer whose involvement and the use of ACAS standard form (a “COT 3″) also makes the agreement enforceable.
You should seek legal advice (in fact legal advice is legally required in the case of compromise agreements) before signing away your rights in a settlement agreement. A lawyer will be able to advise you on the strength of your potential claim in relation to what you are being offered, the amount you are being offered and critically whether you can afford to fight. If you have legal expenses insurance this should enable to you to leverage the settlement sum upwards since you will face no liability for costs.
Usually discussions about a compromise are “without prejudice” meaning that any admission made cannot be used in subsequent Court or Tribunal proceedings. If you or your employer ask for a “without prejudice discussion,” then the discussions will normally be protected in this way. In any event, you should keep careful notes of what is said in settlement and you should also avoid making any such admissions yourself. The government have now introduced “protected conversations” in order to extend the scope of confidential discussions. The rules are complicated and you should get advice before agreeing that a conversation is going to be without prejudice or protected since you will be very annoyed if during that conversation the employer admits (for example that you are being dismissed because of your age).
Act quickly to bring a claim
You face strict time limits for bringing claims (how a claim is brought is considered below). The time limits are as follows:
- For a claim of unfair dismissal, you must bring your claim within three months of your dismissal (or resignation if claiming constructive dismissal).
- For discrimination, you must bring your claim within three months of the act of discrimination you are complaining about. However, the Tribunal does have discretion to allow claims to be brought after the three month limit.
Josie is dismissed due to her poor performance on November 24th 2013. She appeals and her appeal is heard on December 4th. The appeal fails and she brings her ET claim for unfair dismissal on March 3rd relying on the advice of her lawyer that the three months started on December 3rd .
Josie’s claim is too late and will be “struck out”. Time started to tick on November 24th which was when her employment came to an end. The ET will take no account of the fact that she received bad advice from her lawyer (though she may well be able to sue the lawyer!!).
However if Josie had brought a discrimination claim, the Tribunal would have a discretion to allow her claim to proceed based on her being let down by her lawyer because the legal rules are different.
In addition, in a discrimination claim you may be able to argue that you have been the victim over time of an on-going campaign of discrimination. If you are able to show that you complained about the last of the series of acts within three months then you may be able to make a claim based on the whole of the alleged campaign however long ago it started. The costs of investigating an extended history of allegations make this the nightmare scenario for employers.
Raj says that beginning in 2009 he was subject to regular racial abuse from his manager Harriett.
On 21st December 20013 he resigns. On 20th March he submits a claim form. He says he was forced to resign (was “constructively dismissed”) on 21st December because Harriett had racially abused him yet again. He says this was the last straw and set out a whole series of allegations going back to 2009.
Raj’s constructive dismissal claim is in time and because, according to him, this forms part of campaign (“a continuing act”) going back to 2009 so he may be able to persuade the ET to consider all his allegations going back to 2009.
You should never delay issuing a claim form because you are trying to negotiate a settlement with the employer. If you do, you are likely to lose the right to claim and the employer will lose all interest in settlement. Conversely starting a claim does not commit you to going all the way to a hearing. Settlements occur at many points along the road and approximately 2/3 of all claims which are started settle.
If you are think you may have an ET claim, you should take legal advice as soon as possible. If you have legal expenses cover you will need to think carefully about whether to consult a firm on the insurers panel or choose you own lawyer. Many Claimants prefer to choose their own lawyer and there are good reasons to do so. The disadvantage is that initial advice is usually not covered.
Be that as it may, such advice is vital. After speaking to you, your adviser is likely to send “pre-action letter,” the purpose of which is seek further information and/or achieve a settlement without starting legal proceedings. Many employers respond fully and in a cooperative manner, setting out their case in full. They do this because Tribunals expect them to, and in the hope of deterring you from bringing a claim. The advice you get from your lawyer and from the response to the pre-action letter will help you decide whether you have a good claim.
For discrimination cases, there used to be a law stating that you can send your employer a “Discrimination Questionnaire” which allows you to ask for detailed information such as documents and statistics to establish that what you say is true. This has been abolished for all claims relating to acts on or after 6 April 2014. You are, however, still allowed to ask such questions of your employer. There is no requirement for your employer to respond, but if they fail to, it can be used as evidence against them in a subsequent claim in the Tribunal.
Starting your claim
You do this by sending to the Tribunal a document know as a Claim Form and it must arrive at the Tribunal before the relevant time limits is passed. It can be sent in (“filed”) online. The Tribunal Service stamps on the form the date it was received and then sends it to the employer. It is receipt of the Claim Form which tells the employer that a claim has been made.
The Claim Form, sometimes called an ET1, is a pre printed form containing various standard questions and boxes to be ticked, designed to show what the you are claiming. However, employees often insert or attach separately a customised document known as Particulars of Claim, which sets the facts which they are seeking to prove and the claims which they are making.
It is important to get the Particulars of Claim right and to make sure you make all possible claims. It is relatively easy and usually costless to drop (“withdraw”) claims later. It is harder to add new claims (“amend”) especially if you are seeking later to make new factual allegations. It is much easier to amend if you are not making new allegations but simply seeking to make different legal arguments. The law on amendment is very technical.
If the Claim form is vague in any respect the employer can ask you for further information (Who made the statement you complain about? When? Where? Were there any witnesses?) and if the your response is inadequate it can ask the Tribunal to order you to respond properly.
On the other hand, most legal expenses insurance kicks in after but not before the Claim is issued (at least if the Claimant chooses his/her own lawyer). This practical consideration leads some Claimants to keep the Claim Form brief and seek to give more detail (“further particulars”) later.
Having received your claim form, the employer must return to the Employment Tribunal the Response Form (provided by the Tribunal service when it sends the Claim form and usually known as an ET3) within 28 days. If it does not, then you are likely to obtain “judgment in default” meaning that you win the case automatically. If there are practical difficulties (for example key witnesses are on holiday or abroad) the employer can write to the Tribunal asking for an extension. If it does, the employer should send a copy to you, indicating that if you object you should let the Tribunal know within 7 days.
Wise employers investigate thoroughly what you have said in the Claim Form since this will enable the employer to decide how good your claim is. There may be further discussion about settlement at that stage. Practitioners differ on how much detail they put in the Defence. Less is usually cheaper, but runs the risk of an order by the Tribunal for more detail. A detailed defence will give you more information about the strength of your claim.
Choose Option 3 ’36 Civil’ and mention’ ‘YEB’