At some point it’s possible that a dreaded Employment Tribunal claim form will land on your desk. It could be something that you’d been expecting following a particularly acrimonious departure of an employee or it could catch you completely off guard. Either way, it’s useful to know what you need to do if you find yourself in this situation.
Early warning – Acas Early Conciliation
The Employment Tribunal system changed; as of 6th May 2014, it will be impossible for you to receive an unexpected ET1 (the name of form used to submit an Employment Tribunal claim).
Every employee who wishes to bring an Employment Tribunal claim has to go through the Acas ‘early conciliation’ process first. The process is that the employee has to raise their complaint to Acas in the first instance, and Acas then makes attempts to resolve the issues and reach a settlement before the claim progresses to a full Employment Tribunal hearing.
It’s not compulsory for employers to participate in conciliation but our feeling is that it’s likely to be viewed negatively by a judge should an employer refuse to participate.
You can find out more about the early conciliation process on the Acas website.
We hope that this change will lead to a decrease in the number of vexatious, time-wasting claims that are heard and we’re watching carefully to see the impact this has.
Receiving an Employment Tribunal Claim – ET1
So although it shouldn’t be a surprise when you receive an ET1, receiving your first one may very well send you into a panic; if it isn’t your first one, then you know what’s coming and know that it’s hardly good news!
The document is very formal looking and it could (and most likely will) be the first time you’ve seen your company name sited in legal proceedings.
Our first tip is to stay calm! Have your rant and then focus on assessing the options open to you.
Submitting a Response to an Employment Tribunal Claim – ET3
Regardless of whether you want to fight the case all the way to a hearing or you’d rather reach a settlement, our advice is always to submit a response to the ET1.
If you fail to do this and then aren’t able to reach an agreement with the employee, you make winning your case almost impossible (as the tribunal service will reach a decision based only on the information provided by the employee).
All responses have to be submitted on a form known as an ET3 and this can be done online. We do recommend getting your response reviewed by a professional (preferably us!). They will know all of the potential issues and be able to guide you through. The cost of legal support to submit a response will be in the region of £800 (depending on the complexity) but this is money well spent.
To Fight or Not To Fight?
Having submitted the response you need to determine whether you actually want to fight the case or whether you’d rather reach a settlement. It may be that you didn’t reach a settlement through the early conciliation with Acas but there’s nothing to stop you trying again now that the claim has been lodged.
When deciding on the best route for your business you need to consider:
- Financial cost – When managing these situations for clients, we tell them to expect the cost to be around £6,500 to fight an average case (a very complex case will cost more than this. That cost is when using our services along with a barrister for the actual hearing (which is much more cost effective than using a lawyer to handle the entire process).
- Time cost – There’s no way around it, fighting an employment tribunal claim is time consuming and can also be very distracting. Even if you hand the case over to a third party for them to manage, you’re still going to need to provide information and attend meetings and hearings.
After the initial investigation, you find yourself in a situation where an employee is looking for £2,000 to just go away; this is cheaper and saves you time and hassle, so why wouldn’t you just pay them? Well you need to be careful of…
- Setting a precedent – Many clients choose to fight cases to ensure that they send a clear message that they won’t be held to ransom by employees who bring vexatious claims. Many clients are happy to enter into settlement negotiations when they feel that they have actually done something wrong but choose to stand their ground when an employee is simply trying to be disruptive.
- Reputational damage – No employer wants to have a reputation in the market of being an unscrupulous employer who treats employees badly and then pays them to go away. They see the money spent on fighting the case as being money spent on protecting their brand.
If you decide to reach a settlement…
You can use Acas to help you reach a settlement with the employee or you can liaise with the employee directly.
We would advocate using Acas as they can provide an independent view point to help ensure that both parties feel the outcome is as it should be. They will also add a degree of formality to the process and ensure that the claim is actually withdrawn. It will be interesting to see what role Acas will continue to play in dealing with disputes with the introduction of early conciliation.
If you decide to fight the case…
It’s best to seek professional advice as there are be a number of steps that could happen and different claims take different routes.
If you do have a case that you’d like to discuss, then give us a call on 0203 319 1649 and speak with one of our advisers. Alternatively, you can contact us using our email contact form and one of our advisers will be in touch.