Defending Claims

Defending Claims

  1. Many claims are lost or won long before the employees claim arrives on your desk.. The best way to defend or indeed fight an Employment Tribunal claim is to take advice or otherwise ensure that you are well informed at a very early stage (ACAS for example publishes very helpful Codes of Practice)   It is important for example when considering whether to dismiss for gross misconduct to take advice on whether the evidence is sufficient to withstand a claim for unfair dismissal. The costs of doing so are likely to be insignificant compared to the cost of defending an unfair dismissal case (i.e. £12,000 for a 2 day case).
  2. The road to an employment tribunal claim may begin in a variety of places and there are a number of exit roads. You will often be aware at a relatively early stage that the employee is unhappy and in such a case a compromise agreement may be appropriate i.e. a legally enforceable agreement by which the employee undertakes not to bring proceedings against the employer usually in return for a sum of money. However you need to be careful that by having such a conversation you are not making an admission which could be used against you later. This has for many years been the case if the conversation is “without prejudice” (ie part of an attempt so settler a dispute about legal rights). Recently  the government introduced a wider category of confidential discussions known as a “protected conversation”. Howev er the limits of these rules are not yet clear and you should get detailed advice before relying upon them. They do not apply when the claim is about discrimination.
  3. One of the best ways to ensure that a redundancy does not lead to an unfair dismissal claim is to offer 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.
  4. How long do you have to wait before you can be sure that you are not going to face a claim? The answer is that employees face strict time limits for bringing claims (how a claim is brought is considered below). They must generally speaking bring their claim within 3 months of when their employment came to an end in an unfair dismissal case and within three months of the act of discrimination they complain about in a discrimination case. In an unfair dismissal case the time limit is strictly applied and it is very difficult to get the Tribunal to extend the time limit. In a discrimination case however, the Tribunal has discretion to allow claims to be brought after the 3 month period.


Josie is dismissed due to her poor performance on November 24th 2013.  She appeals and her appeal is heard on December 10th.  The appeal fails and she brings her ET claim for unfair dismissal on March 9th relying on the advice of her lawyer that the three months starts December 10th.

Josie’s claim is too late and will be “struck out”. Time started to tick on November 23rd 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. The  the legal rules are different in relation to discrimination.


  1. In addition, an employee may be able to argue that s/he has been the victim over time of an ongoing campaign of discrimination. If the employee is able to show that s/he complained about the last of the series within 3 months, then s/he 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 2010, he was subject to regular racial abuse from his manager Harriett

On 5th December 2013,  he resigns. On  4th March 2014,  he submits a claim to the ET. He says he had to resign on 5th December (was “constructively dismissed”). because on that date Harriett had abused him yet again. He says this was the last straw and set out a whole series of allegations going back to 2010.

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 he is may well be able to persuade the ET to consider all his allegations going back to 2009.



  1. Where the employee has taken legal advice the employer is likely to receive a “pre-action letter” from the legal representative, the purpose of which is seek further information and/or achieve a settlement without starting legal proceedings.  You should respond fully and in a cooperative manner setting out your case in full. Tribunals expect this and it may in any case deter the employee from bringing a claim.
  2. If the employee is thinking of bringing a claim for discrimination , the employer may receive a “Discrimination Questionnaire”. This document will set out the ways in which the employee thinks you have discriminated against him and ask for detailed information including documents and statistics designed to establish that what s/he says is true. Answering a Questionnaire can be very time consuming but care needs to be taken before refusing to answer since the Tribunal is currently entitled to see this as evidence that you have something to hide. Having said that a current tactic which is being used with some success is to refuse to answer until you have had a chance to apply to the Tribunal to dismiss (“strike out”) the claim in the grounds that it has no reasonable prospects of success. The success of this tactic is a reflection of the fact that it is widely thought that the Questionnaire procedure is oppressive. The government is to abolish the questionnaire procedure in 2014.  Having said that, employees may well be able to use other procedural devices to obtain the same goal.
  3. An employee starts a Tribunal claim by sending to the Tribunal document know as a Claim Form sometimes known as an ET1 and it must arrive at the Tribunal before time limits set out above 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. Under reforms brought in last year the employee has to pay a fee of £250 to file his claim.
  4. The Claim Form sometimes called an ET1 is in part a pro forma containing various standard questions and boxes to be ticked designed to show what the employee is claiming. However employees often insert or attach separately a customized document known as Particulars of Claim which sets the facts which the Claimant is seeking to prove and the claims which s/he makes. However you should be aware that the Claimant may be able to add to the claims he is making (“amend the claim”) at a later date so that for example what looked like an unfair dismissal case turns into a discrimination case.
  5. The key point is that having received the Claim Form you must return to the Employment Tribunal the Response Form (provided by the Employment Tribunal service when it sends the Claim form and usually known as an ET3) within 28 days. If you do not, then the Claimant is likely to obtain judgment in default meaning that you lose the case automatically.   If there are practical difficulties (for example key witnesses are on holiday or abroad) you can write to the Tribunal asking for an extension. If you do you should send a copy to the Claimant or his lawyer indicating that if they object they should let the Tribunal know within 7 days.
  6. It is undoubtedly wise to investigate thoroughly what the Claimant has said since this will enable you to decide how serious the claim you face is.  If the Claim form is vague in any respect you can ask the Claimant for further information (who made the statement you complain about? When? Where? Were there any witnesses?) and if the Claimant’s response is inadequate you can ask the Tribunal to order the Claimant to respond properly.
  7. Practitioners differ on how much detail to put in the Defence.  Less is usually cheaper but runs the risk of an order by the Tribunal for more detail. A detailed defence also sends a strong message to the Claimant.




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