How to Handle an Employment Tribunal

July 7, 2022

No employer wants to deal with an employment tribunal. An employee can make a claim against a business for a variety of reasons, including unfair dismissal, non-payment of wages, discrimination and whistle-blowing.

Ideally, a business will have made steps in advance to avoid ever being taken to employment tribunal. However, if your business is being taken to a tribunal, below are the best practices for dealing with the process. Vero HR is an expert in employment law, and we provide professional employment law services, including employment tribunal case management.

If an Employee Threatens to Make a Claim

It may be possible to discourage an employee from making an official claim in the first instance. There will usually be a lengthy period of time between a claim being submitted and the formal hearing, sometimes between four and ten months. This may put off an employee who is looking for a resolution and it might be an option to instead reach a solution without the need to go to an official hearing.

The employee may have already attempted to raise a formal grievance, in which case all necessary steps should be taken to resolve the issue at this point. If it is not possible to settle, the employee will need to go through early conciliation.

Early Conciliation

Before an individual can make a claim, they must receive an Early Conciliation Certificate from ACAS. This is a process offered for free by ACAS to help both parties resolve the dispute before it goes to tribunal. If both parties agree to being involved in this step, they will have six weeks to attempt to reach a resolution.

Employers should make every effort to cooperate with ACAS, as it can save a lot of money and time to resolve the issue at this point rather than going to a tribunal. Managers who will likely be the point of contact for ACAS should be properly trained to deal with the matters. Vero HR’s employment law services include management of the ACAS early conciliation process, so we can help you to settle disputes even before they go to a tribunal.

The individual making the claim is not obligated to give permission for ACAS to contact the employer. If this happens, ACAS will issue the Early Conciliation Certificate on the basis that early settlement is not possible, and the individual will be able to continue making a formal claim.

Receiving and Responding to a Claim

If the employer has gone through early conciliation, they will already know that an employment tribunal is possible. However, if the individual has not given consent for ACAS to contact the employer, the business will not know about it until the formal claim is made.

If this is the case, the employer will need to ensure that they are the correct respondent on the claim and that they have been correctly identified on the Early Conciliation Certificate. They will also need to check that the individual has a legitimate legal right to bring the claim and that they have sufficient service time.

The business will have 28 days from the date of the tribunal letter to give its response. The response will need to be submitted via the official ET3 form that can be found on the Employment Tribunals website. When preparing your response, you should speak to all the relevant internal parties to gather the necessary information. If any employees have left, you should consider whether they will be willing to participate in these proceedings.

Your ET3 response form should be kept concise but contain all the required details about the situation. Information should be given in chronological order where possible, and it does not have to be very long. You should also make sure to refer to any relevant documents. You do not have to set out legal provisions in this instance; you only need to state whether you reject some or all of the allegations that have been made against the business.

A copy of any correspondence made to the tribunal will be sent to the individual by the Employment Tribunal office. You should also save a copy of the ET3 form and any other correspondence to your computer and ensure there is a backup.

The Hearing

Each type of claim will be dealt with in a different way. Sometimes the tribunal will request a Preliminary Hearing, and in other cases, it will request that each party take certain steps by a particular date. In the case of a Preliminary Hearing, both parties will need to attend. Here, it will be agreed what steps need to be taken next to prepare for the hearing. It may be that further information is required before the case can proceed, or it may be that expert evidence, such as that from a medical professional, is required.

Most tribunal hearings will be heard by only a judge; in some circumstances, there will be a judge and a panel of a few members from different backgrounds, such as a trade union and someone with a background from an employer’s perspective. Witnesses will likely be cross-examined with questions based on the statement they have already given. There will sometimes be a time limit for how long a party can question a witness.

The hearing will usually be split into two parts – liability and remedy. The liability section will aim to determine whether the employee has won or lost the case. The remedy section will establish what the outcome is, such as how much compensation the employee is entitled to if they have won.

The Decision

Tribunals will usually not give the decision on the day of the hearing. Instead, it will be sent to both parties by post. They will not give reasons for their decision – if an employer would like to know the reasons, they can request them within 14 days of the date on the decision letter.

Whichever party has lost will have 14 days to ask the tribunal to review the verdict, and 42 days to submit an official appeal for the decision. They will only be able to request this appeal in certain circumstances, for example, if new evidence has been found that could support the case, or if it would have been impossible for that decision to have been reached based on the evidence available. There will be a cost associated with both requesting a review and submitting an appeal.

If your company needs HR support, Vero HR can help. We can provide you with a dedicated HR support service as well as advise on employment law issues. Contact us to find out how we can help your business.

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