In comparison to days gone by it is now both easier to deal with an incoming employment claim because in most scenarios you will have had some advance notice of it (and so can start to get your ducks in a row) and more important to deal with it properly (as the consequences for failing to do so are more serious).
Historically although you might have had an inkling that an employee or former employee might bring a claim (because you had dismissed them, or they had resigned or raised a grievance) the first formal notification might well be their claim form (known as an ET1) arriving from the Employment Tribunal through the post.
Nowadays, however, in the vast majority of cases an employee or former employee cannot start an Employment Tribunal claim without going through an “early conciliation” process with ACAS. This will result in a call to you from ACAS (provided the employee has not indicated that they do not wish to negotiate a settlement) during which you will be told of the employee’s intention to bring a claim and be given the opportunity to agree a resolution before a formal claim can be brought.
Assuming an ET1 does land on your desk (and it will still come through the post) you have 28 days to respond. But beware – the 28 day clock runs from when the Employment Tribunal posted it to you, not from when you receive it. Helpfully, the covering letter that the Employment Tribunal sends out with the ET1 will set out the last date for you to respond to the claim.
That response is submitted using a standard form, known as the ET3. There will be a copy of it in the pack you receive from the Employment Tribunal. You can complete this and post it back, or you can complete an online form through the Tribunal Service. The latter is the safer course – as submission generates an online receipt. Employment Tribunals are under resourced and swamped with paperwork – so you may well not get an acknowledgement of a paper submission until the 28 day deadline has passed.
What should you put in your response? Much of the ET3 is simply a matter of providing factual information about your business and the employee – dates of employment, remuneration etc.
The important bit is where you set out your reasons for defending the claim. There are temptations both to say the minimum possible and deny everything, and to also to go “chapter and verse” with a full narrative of everything that has happened. Both are wrong.
The ET3 is a great opportunity to make a good impression on the Employment Judge who ultimately hears the case. On the morning of the hearing the ET1 and ET3 are likely to be the first things the Judge reads. If you have set out a concise account of your position and why it is right, you should be halfway there.
Of course to do this you need to know what your position is. That’s why preparation of the ET3 should be approached properly – which you can only do once you have all the facts. There is little worse at a Tribunal hearing than a hastily pulled together ET3 and a set of subsequently produced witness statements that are at odds with each other. Time and effort spent on a well drafted ET3 will pay dividends.
But don’t spend too long ….. if you miss the 28 day deadline, you can now lose an Employment Tribunal claim by default.
