Top 10 tips for defending Employment Tribunal claims

22 March, 2018

Recently released quarterly statistics for the period October to December 2017 reveal that employment tribunal claims have rocketed by 90% since the abolition of fees in July last year. Here are some top tips for handling a tribunal claim if you are unfortunate enough to become involved in one:

  1. Prevention is better than cure – Putting in the time and effort to do things properly when faced with a grievance or handling a dismissal can pay dividends in the long run. Ensure you have proper policies and procedures in place and that managers know how to follow them. Do not pre-judge, make sure you undertake a full investigation and document your decision making process.
  2. Make the most of ACAS early conciliation – Before lodging a claim, most cases first have to go to ACAS for a mandatory early conciliation process. Try and use this period wisely. Generally speaking the earlier the parties start talking, the more likely they are to resolve claims because the longer cases last the more entrenched the parties can become in their positions. Stay open minded and consider whether it is worth attempting to settle the potential claim at this stage in order to avoid the time, cost and stress of going to tribunal.
  3. Submit your defence on time –Responses must be filed within 28 days of notification of the claim by the tribunal. If you miss this deadline you may be prevented from proceeding with your response. Don’t lose this opportunity. If you receive a claim form don’t sit on it – deal with it promptly.
  4. Diarise key dates and comply with orders – In the majority of cases the tribunal will issue standard directions to both the claimant and the respondent. These directions will give deadlines for various steps such as the exchange of documents and witness statements. Take these orders seriously because if you don’t carry out an order without a very good reason, you may have to pay costs or your defence may even by struck out.
  5. Retain evidence – A crucial part of the litigation process is collecting and preserving documentary evidence relevant to the complaint. Having all relevant documents to hand at an early stage will be crucial to assessing the merits of your case. Missing documents can be embarrassing and detrimental to the presentation of your case.
  6. Consider strategy from the outset – The strength of a claim should be assessed at an early stage so that you can decide how vigorously to pursue settlement. It is worth remembering that the normal rule in tribunals is that each party pays their own costs, however, a tribunal is at liberty to order a party to pay the other party’s costs if they consider that a claim or a defence has no reasonable prospect of success.
  7. Know your documents inside out – When preparing witness statements and giving evidence at tribunal don’t be caught out by contradictory documents or documents that you did not know even existed. Familiarise yourself with the trial bundle in advance so that the other side cannot trip you up or catch you off guard.
  8. Prepare your witnesses – Make sure your witnesses are ready and willing to attend the hearing and are given some tips in advance about giving evidence. Witnesses should try to be courteous and treat the tribunal panel, and the person who is cross examining them, with respect. The most important thing is to give clear and consistent evidence.
  9. Learn from the experience – Whether you win or lose at tribunal, make sure you take some learning points away with you and consider what practical steps you can take to ensure that you do not end up in the same position again.
  10. Obtain expert legal advice at an early stage – Taking legal advice at an early stage can help you understand the likelihood of succeeding with your claim or defence and therefore determine your overall strategy. Specialist lawyers can help you put your best possible case forward and navigate the complex tribunal process on your behalf. A great deal of stress and management time can be saved if you choose to instruct experienced and reliable solicitors.

The employment team at Cripps Pemberton Greenish has an excellent track record in dealing with the whole range of employment tribunal claims including unfair dismissal, breach of contract, discrimination and whistleblowing. Let us guide you through the process as smoothly and as cost effectively as possible.

For more information, please contact Camilla Beamish.