Dealing with an Employment Tribunal or Court claim can be a time-consuming and costly exercise and there are risks and uncertainty associated with litigation.
However, with careful planning, well-organised and strong documentation, and the support of a great employment lawyer (like us!), you can ensure claims are defended swiftly and successfully.
Who can make an employment claim?
Employment claims can be brought by current employees, ex-employees, and prospective employees, this last one often surprises people and usually relates to situations arising during the recruitment process. Such claims can be brought in either a Tribunal or a Court, though they are more often brought in a Tribunal.
What is the difference between a tribunal and a court claim?
Tribunals are less formal than the Court. For example, no-one wears wigs or gowns. In the Tribunal, the parties are known as the “claimant” (the party bringing the claim) and the “respondent” (the party defending the claim).
The most common employment claim in a Court is for breach of contract and is typically brought where the claim is worth £25,000 or more. This is because a Tribunal claim for breach of contract is limited to a cap of £25,000.
Why are tribunals more common that court claims?
Individuals must pay an issue fee to bring a claim in the Court. The amount of the fee depends on the level of compensation they are seeking. To bring a claim in the Tribunal does not cost anything, so is a more favourable option from the individual’s point of view.
However, the lack of a fee is often why speculative claims are brought in the Tribunal even if individuals don’t believe them to be particularly strong, as a business may prefer to pay some money at an early stage to resolve matters quickly and avoid going to a hearing.
Important to note that a claim can only be made in the Tribunal once an individual has been through the ACAS Early Conciliation process.
What is the ACAS Early Conciliation Process?
This essentially takes place over the course of a month and involves an ACAS conciliator liaising with both parties to see whether or not it is possible to settle the claim in question, and on what basis. If there is no resolution at the end of the process, ACAS will issue a certificate and the individual can then use this to bring their claim in the Tribunal.
Are tribunal and court hearings kept private?
Hearings in a Tribunal or Court are open to the public. If a claim is of particular interest to the public (for example because it relates to discrimination or whistleblowing), members of the press may attend. This is why businesses are often put off defending claims in a hearing as they would rather avoid the risk of any adverse publicity.
How long does a hearing last?
The number of days set aside for the hearing will depend on the complexity of the claim and the number of witnesses that each side intends to call. Depending on how long a hearing lasts, a Tribunal or Court may “reserve” its decision. This means that instead of giving a decision at the end of the hearing in person, they give it at a later date in writing. The timeline for this can vary and will depend on the Tribunal or Court’s workload, but it can take several weeks or months.
If a claimant is successful with their claim, a Tribunal or Court will usually fix a further hearing to consider the question of compensation.
Can you appeal a hearing decision?
Once a written decision has been sent to the parties, the unsuccessful party has a certain amount of time to appeal or to have the decision reconsidered. Appeals are only allowed on points of law; they can’t be just because a party disagrees with the Tribunal or Court’s decision. Appeals in a Tribunal claim are made to the Employment Appeal Tribunal (EAT).
Can a company seek costs from a claimant?
It is possible to seek costs against a claimant. For example, if you successfully defend a claim and can show that the claimant was unreasonable in pursuing it. Or if you made an offer to settle the claim, which was declined by the claimant, but they were then subsequently awarded less compensation than the offer you made.
However, costs awards are rare and when they do happen there is still no guarantee that this is the end of the matter. If the claimant fails to pay you, you will then have to issue separate proceedings against them to enforce the award and payment.
What should businesses do once a claim is received?
Once a claim is received, there are some key steps in the process to be aware of, and we’ve listed our top ten below.
Detailed planning at the onset of a claim will ensure you don’t miss the deadlines for any important actions, and will also help to build your defence.
1. Diarise all key dates provided
Note the date the defence to the claim needs to be filed at the Tribunal or Court. Extensions are rare and if you miss the deadline, you won’t be able to defend the claim at a hearing.
Note any case management or hearing dates received from the Tribunal or Court
2. Be clear on all the tasks you need to complete before the hearing
These will include preparing a list of the documents relevant to the claim (and defence), the claimant producing a schedule of loss setting out the financial compensation sought, producing a joint bundle of documents, and preparing witness statements.
3. Check if there is a preliminary hearing
On occasion, a preliminary hearing may be listed in a Tribunal to deal with case management or issues such as whether a claim is out of time, whether the claim has no reasonable prospects of succeeding or where the claimant is not eligible to bring the claim in question.
4. Be clear on the details behind the claim
Ascertain what claims are being made by the employee, for example unfair dismissal, discrimination etc. Is it clear what the basis of the claim is? If not, you may need to seek further information from the claimant to enable you to properly defend it.
5. Check compliance with ACAS Early Conciliation requirements
Check the claimant has complied with applicable ACAS Early Conciliation requirements (see section earlier on in this article). A claim cannot be brought in the Tribunal unless the individual has completed the ACAS Early Conciliation process.
6. Check the claim has been brought in time
There are specific time limits for bringing an employment claim in the Tribunal or Court. Subject to the period of ACAS Early Conciliation, a claim in the Tribunal must be brought within 3 months of a particular act e.g., dismissal, discrimination, detriment due to whistleblowing or failure to make a contractual payment etc.
A breach of contract claim in the Court has a longer time limit and can be brought within 3 years of the breach in question.
7. Check the claimant fits the eligibility criteria for their claim
Establish whether the claimant satisfies the eligibility criteria for their claims. For example, only an employee can bring a claim for unfair dismissal, so can the claimant show they are an employee or were they actually a self-employed contractor instead?
8. Gather information and documentation
A strong paper trail is essential to the successful defence of a Tribunal or Court claim, particularly where it is one person’s word against another. It’s important to keep any documents that may be relevant to a Tribunal or Court claim (including emails, letters, minutes of meetings, handwritten notes, and WhatsApp messages), even if those documents do not aid your defence!
While it may seem time-consuming to keep detailed notes or to follow up every conversation in writing, in the long term these documents will help evidence the process that was followed, which could make all the difference in a successful defence.
9. Choose your witnesses
Decide on the witnesses needed to support your defence – for example, in an unfair dismissal claim the witnesses would usually be the dismissing officer and the appeal officer.
10. Consider your preferred outcome early on in the process
Some businesses prefer to avoid Tribunal or Court proceedings at all costs, others prefer to contest all but the most clear-cut claims as a point of principle (and to deter future potential claimants).
The majority however are usually guided by the relative costs of defending the claim versus the value of the claim, as well as their likely chance of success. In some circumstances, offering a modest sum of money or a reference to settle the claim at an early stage via ACAS may be a more practical resolution.
If your business needs help with tribunals and court claims
Our team are on hand to offer straight-talking advice and guide you on all the legal aspects of Tribunals and Court Claims. Our employment lawyers can help you to defend the business and can also handle all of the litigation on your behalf.
Contact one of our team today for an informal chat.
If you’re an employee looking for advice on this topic take a look at our employee guide to employment tribunals and court claims