5 Things You Need to Know About Preparing a Tribunal Claim or Defence – Part II

Employment

Employment tribunals deal with claims brought against employers (the “respondent”) by employees (the “claimant”). Before reading this article, we would invite all readers to consider Part I of the series, “5 Things You Need to Know About UK Employment Tribunals,” which should help you understand employment tribunals in the UK and how they operate.

Things to be aware of before you make or defend a claim:

  • Time limits
    • A claim must usually be made within three months from the date the employment ended. If the claim relates to redundancy pay or equal pay, the claim must be made within six months from the date the employment ended. If this time limit is not met, the claim may be time-barred.
    • A response is generally required within 28 days of intimation of the claim form by the Employment Tribunal. Although the Tribunal may exercise its discretion to allow this to be received late, try to avoid missing the deadline if at all possible.
  • Dispute resolution procedures
    • If the employer has its own disciplinary and grievance procedures, it is generally good to follow these, whether you are the claimant or the respondent.
  • Dispute resolution procedures – appeal
    • Any dispute resolution procedure should have an appeal process which should be followed if the employee is unhappy with the initial outcome of any dispute resolution procedure.
  • ACAS Code of Practice
    • Both parties have an obligation to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.
  • Early Conciliation Protocol
    • In most cases, before a claim can be submitted to the Employment Tribunal, a would-be claimant must complete an online ACAS form intimating their intention to make a claim. Parties can use ACAS to resolve the dispute through ‘early conciliation,’ or the claimant can obtain the necessary Certificate to proceed to Tribunal.
  • EC Certificate
    • Once the claimant has received an EC Certificate from ACAS, they can make a claim either online or by post to the Employment Tribunal.

Making an Employment Tribunal claim

The first step in making a claim is completing a Form ET1 (the “claim form”) and submitting it to the Employment Tribunal. In preparing the claim form, the following advice applies whether you are a claimant or a respondent and whether you are trying to pursue a claim or defend one.

We have outlined the five things to consider when preparing your claim or defence. Employment Tribunals are intended for use by party litigants, but if you feel that your case is a complex one, you may consider instructing someone qualified to represent you. Nothing in what follows should be viewed as legal advice, and you should always seek advice from someone in possession of the specific facts of your case.

  1. Create a chronology of events

The employment tribunal will apply particular legal tests to your claim to evaluate its chances of success. It is important to establish all the relevant facts before deciding which legal claims or defences may apply. You should provide as much evidence as you can to support your position.

A good starting point is to write down everything that happened concerning the claim in chronological order. If you have a diary or file documenting what happened at the time of the event, this will be extremely helpful in establishing the chronology of events and facts and provide vital evidence at any hearing. Once a clear chronology has been established, you should gather the evidence to support your narrative. If you instruct a representative, they should be able to help advise you with this process.

If you remember something that you had not included previously in the chronology of events, make sure to provide your representative with this information as soon as possible – it could help give more weight to your side of the case.

  1. Gather your evidence

The evidence you can provide may prove vital in supporting your side of the case and the outcome. As a general rule, you should look to gather:

  • any employment contract(s), letter(s) varying the contract, payslips, P45, and salary details;
  • any correspondence concerning what has happened (this could include: letters, emails, texts, screenshots, etc.);
  • a list of possible witnesses (identify by full name, job title, and potential relevance of their evidence);
  • for the claimant, documentation that proves you have been applying for other jobs (if you are also claiming for loss of earnings for the period following your dismissal);
  • also, for the claimant, details of your new salary (if working in a new job);
  • for the respondent, evidence of any procedures or processes followed and any attempts to resolve the dispute informally or formally.

The list above is not exhaustive. Depending on the circumstances of the case and there may be other forms of evidence that may be relevant.

  1. File your documentation in chronological order

Once you have gathered any evidence, you should categorise your documents as best you can and arrange them chronologically. This will make them easier to navigate and more accessible when preparing for any hearing. Ultimately, the Tribunal will expect parties to lodge papers in this format for any final hearing.

  1. For claimants – Section 8.2 of the claim form

Having established the chronology of events, providing the background and details of your claim within the claim form should now be a more straightforward task. While you may be repeating some information that has been provided elsewhere within the form, it is good practice to begin this section with the following:

“The Claimant commenced their employment with the Respondent on [insert date]. The Claimant was employed as [insert job title] by a contract of employment signed/dated [insert date] [the “Contract”]. The [Contract] regulated the Claimant’s employment until they [were dismissed / resigned] on [insert date]. As [insert job title] the Claimant reported directly to the [insert job title of senior].”

With some obvious changes, respondents can adopt a similar approach to setting out their defence.

Following this opening paragraph, you can go straight into the events of the claim itself. This should be structured in chronological order, as achieved above. The statement should be typed, and paragraphs should be short and numbered with a line spacing in between. At this stage, it is important to keep the statement short and concise – Employment judges have made it clear that they do not wish a factual narration of everything that happened.  Crucially, you should try to clarify what you believe your legal case or defence to be.

  1. Identify your witnesses carefully

The employment tribunal will hear evidence given on both sides, including from the claimant. Identifying your witnesses at an early stage will help keep you focused on your claim or defence. Do not fall into the trap of believing that the more witnesses you have, the better your case (or defence) is going to be.

Last but not least, good luck!

Get in touch

Should you have any questions on anything covered in this article or employment matters generally, please get in touch with Dawn Robertson at dawn.robertson@rooneynimmo.co.uk or on + 1 44 (0)131 220 9579.

 

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 This article is one of a series intended to de-mystify common legal issues for the non-lawyer and entrepreneur audience – they are designed to foster discussion and is by no means exhaustive. These materials are for informational purposes only. Nothing herein is intended nor should be regarded as legal advice. The distribution of this article to any person does not establish an attorney-client relationship with our firm. Rooney Nimmo assumes no liability in connection with the use of this publication. This bulletin is considered attorney advertising under the applicable rules of New York state. Rooney Nimmo UK is regulated by the Law Society of Scotland and Rooney Nimmo US by the New York rules of professional conduct. All attorneys and solicitors listed in this firm stipulate their jurisdictional limitations. Rooney Nimmo in the USA is a law firm registered as a New York State professional corporation.

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