Unfortunately, the majority of employers, at one time or another, will receive an Employment Tribunal claim from an employee, ex-employee, prospective employee or trade union.
When this happens, it is vital to keep calm and seek legal advice as soon as possible to ensure you protect your organisation in the proceedings. Employment law is an extremely complex, time consuming and ever changing area of law, so getting advice is paramount to a successful outcome for your business.
Handling an Employment Tribunal claim from an employee
What issues can I be taken to an Employment Tribunal regarding?
An employer can be taken to an Employment Tribunal over a broad range of issues, such as:
- Unfair dismissal
- Breach of contract
- Pay (including notice, holiday, unlawful deductions from wages, redundancy pay)
- Working time disputes
How will I first find out that an Employment Tribunal claim has been lodged against my business?
The first you will hear that a claim has been issued in the Employment Tribunal will usually be when the Employment Tribunal claim paperwork arrives with you in the post. It is likely that you will be aware of an impending claim if you have been approached by the Advisory, Conciliation and Arbitration Service (ACAS) before the claim is lodged to see if a resolution can be reached.
It is a mandatory requirement for someone bringing a claim to register with ACAS first. ACAS attempt to resolve the issues between you and the employee without the Employment Tribunal’s input, which is known as Early Conciliation.
What happens if Early Conciliation does not resolve the issues?
Should Early Conciliation fail and the employee does proceed to issue their claim then you will receive a response pack/letter from the Employment Tribunal. The response pack will contain all the information regarding the employee’s claim against you and will provide you with the opportunity to give your account of what has happened.
You must respond to the claim through the response pack within 28 days. This can be done online, by completing and returning the pack, or by downloading and filling in the form and sending it in to the Employment Tribunal office handling the claim.
Should you fail to respond within 28 days, you may be excluded from taking any further part in the claim and in some cases the Employment Tribunal may automatically rule in favour of the employee.
What happens next?
Once you have filed your defence to the employees’ claim, the Employment Tribunal may decide to hold a preliminary hearing by telephone or in person, wherein the Judge may choose to rule on certain aspects of the claim, such as:
- Any jurisdictional points such as whether the claim is out of time
- What aspects of the employees’ claim against you will proceed
- The time and date of the subsequent Employment Tribunal hearing
- What steps both parties have to take prior to that hearing, e.g. disclosure of documents and exchange of witness statements
After the preliminary hearing, both sides will build their case through supportive evidence (e.g. employment contracts, pay slips, meeting notes, etc.) and obtain witnesses. Both parties should comply with the deadlines that the Employment Tribunal specifies.
What happens at the Employment Tribunal hearing?
At the full Employment Tribunal, both you and the employee together with any witnesses will give your accounts of what has taken place.
Both sides will be asked questions by the sitting Judge and the other side (or their legal representation) and will be expected to provide closing arguments/summaries when the evidence has been heard.
Employment Tribunal hearings are a matter of public record so members of the public may attend, unless specific privacy/reporting restrictions have been imposed.
How will I be informed of the Employment Tribunal’s decision?
After the Employment Tribunal hearing has taken place, if the outcome is not delivered on the day, the decision of the Judge will most likely be sent to you a few weeks later and published publically.
What happens if the Employment Tribunal rule against my company?
Should you lose the case against you and the Employment Tribunal rule in favour of the employee, they will most likely make you do one or more of the following, depending on the circumstances of the case:
- Order compensation to be paid to the employee;
- The amount of compensation is usually dependent on the type of case. In an unfair dismissal case, a claimant can usually claim for their loss of earnings to a maximum of a year’s gross pay and a basic award based on their length of service, weekly salary and age. In discrimination cases, a Judge can award compensation for injury to feelings on top of this.
- Giving the employee their old job back or offering them a similar role; or
- Providing the worker with improved working conditions.
If there has been a misapplication of the law, you have the right to appeal the Employment Tribunal decision and legal advice should once again be sought before you do this. You have 42 days in order to appeal to the Employment Appeal Tribunal.
What happens if I win the Employment Tribunal case against my business?
If you win your case then the employee is able to request that the Employment Tribunal reconsider their judgment or lodge an appeal with the Employment Appeal Tribunal if they feel that the Employment Tribunal has made a legislative error in their ruling. The employee has 14 days in which to do this.
In the vast majority of cases, an employer will remain responsible for their legal costs, despite winning the case.
How to avoid an Employment Tribunal claim
The best way to avoid Employment Tribunal claims from employees is to take preventative measures which can avoid disputes arising in the first place. We recommend that you have in place robust employment contracts, policies and procedures which can safeguard your rights, minimise risks to the business and pave the way for a sound employer and employee relationship.
Due to in the ever changing landscape in employment legislation, it is important to review existing contracts, policies and procedures regularly to make sure they are fully compliant and up to date.
How Nelsons can help
At Nelsons, our team in Derby, Leicester and Nottingham work with organisations of all types to implement bespoke contracts, policies and procedures which provide direction both for managers and employees, and help ensure there is fairness and reduce risk in every situation.
We can assist with drafting and updating all types of employment law related documents, including:
- Contracts of employment and directors service agreements
- Policies and procedures
- Disciplinary and grievance procedures
- Equal opportunities and anti-bullying and harassment policies
- Family leave related procedures
- IT communications
- Social media policies
- GDPR compliant documents
- Data protection policy
- Job applicant and staff privacy notices
- Retention guidelines and policies
- Subject access request procedures
We offer the legal, commercial and practical support and advice employers need and find quick and creative solutions to problems, taking a practical and commercial approach to ensure your organisation is legally compliant with its employment contracts, policies and procedures.