PRACTICE MAKES PERFECT NO . 7
PRACTICE MAKES PERFECT NO . 7
WHAT TO DO WHEN YOU RECEIVE AN EMPLOYMENT TRIBUNAL CLAIM
BY ADAM BERNSTEIN , DIRECTOR , ADAM BERNSTEIN LIMITED
� From 29 July 2013 , most employees wishing to pursue an employment tribunal claim against their employer have had to pay a fee to do so . Almost all employers have welcomed this change and the results of the fee are becoming clearer . Not unsurprisingly , the number of employment tribunal claims has dropped considerably - from 50,000 single claims in the first quarter of 2013 , to just over 17,000 single claims in the fourth quarter of 2015 .
While that is a large drop , those cases that are brought may well be more troublesome .
So , if your practice receives an employment tribunal claim - an ET1 form - what steps should you take and what are the key action points to bear in mind ?
DIARISE THE DEADLINE TO RESPOND TO THE CLAIM According to Mark Stevens , a solicitor at Veale Wasbrough Vizards , the priority is to check the initial action required by you – and time is of the essence : “ Employers have 28 days from receipt of the ET1 to respond to the claim by filing form ET3 with the appropriate employment tribunal . The importance of meeting this deadline cannot be overly stated . If you do not comply with the deadline , the employment tribunal may enter a default judgment against you .” He points out that the impact of a default judgment is that the employer cannot play a part in the claim or defend themselves ; this course is best avoided if you want to fight the case .
The deadline will always be clearly set out within the employment tribunal ’ s correspondence notifying you of the employee ’ s claim . Make a note of this . Extensions of time are rarely granted .
CHECK THE TIME LIMITS AND PRE-CLAIM CONCILIATION Speaking of deadlines , practices should always check that the employee has submitted their claim ( s ) within the allotted time ; just as employers have time obligations , so do employees . On this , Stevens says that the general rule is that an employee has three months from the termination of their employment to contact ACAS in order to initiate pre-claim conciliation regarding a potential unfair dismissal claim .
If the worker is alleging discrimination ,
they have three months from the date of the alleged discriminatory act or the last event in a series of discriminatory acts about which they are complaining to contact ACAS regarding their complaint .
For wages claims , a worker will have three months less one day from the date that the wages were due to be paid to contact ACAS . “ The employment tribunal will usually check that these deadlines have been complied with ,” says Stevens , “ but it is always useful to check . If the employee or worker has failed to get their claim in before the relevant deadline , then the employment tribunal will have no jurisdiction to hear the claim .”
The employee or worker will also need to confirm that it has complied with preclaim conciliation by setting out details of its ACAS Certificate Number on the ET1 . Failure to comply with pre-claim conciliation and then submitting the claim within the relevant time period following this process , may result in the employment tribunal rejecting the claim .
CHECK WHETHER THE CLAIMANT CAN BRING THEIR CLAIM Stevens takes pains to explain that some legal protections only apply to employees - for instance claims of unfair dismissal and for a statutory redundancy payment . “ If a claimant is arguing unfair dismissal and they were engaged as a locum , or a worker , then the employer should raise this in the ET3 . Generally speaking , an employee can only pursue an unfair dismissal complaint against their employer once they have at least two years service with that employer , although there are important exceptions to this rule .”
CHECK WHO IS BEING SUED It ’ s interesting to note that claimants sometimes pursue the wrong employer . “ It may that you have been incorrectly identified as the employer liable for the claimant ’ s claim - for instance as a result of a TUPE transfer ( where a practice transfers from one owner to another ),” says Stevens . This is why he says it ’ s also worth checking if the claimant is pursuing a claim in the correct jurisdiction . He expands on this : “ If the claimant was engaged outside of England and Wales and has no connection with the UK , it may be that the employment tribunals based in England and Wales do not have jurisdiction to hear these claims .”
BE CLEAR WHAT CLAIMS THE EMPLOYEE IS BRINGING Usually , the claims will be clearly set out on the ET1 form , but there may be further allegations included within any additional information attached to the ET1 . Your defence should respond to each specific complaint that is being made .
START COLLECTING AND PRESERVING EVIDENCE EARLY Of course , if a resolution cannot be reached the case may proceed to a hearing and witness evidence will be required from those involved in the events and issues giving rise to the
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