[Employment] How to avoid the pitfalls of Employment Tribunal documentation

Receiving a legal claim from an existing or former employee can be very stressful. Navigating complex court processes without the right guidance can add to that stress, not least as the practice and procedure in Employment Tribunals differ from that in the civil courts and are governed by its own set of rules and directions. Here we look at some of the key documentation involved in the early stages of litigation and some common pitfalls to be avoided:

1. What is an ET1?

When the claimant (i.e. the employee or former employee) files their claim at the Employment Tribunal it must be on a specific form called an ‘ET1’.  This is available from the Tribunal website and requires the claimant to provide basic details such as the name and contact details of their employer, as well as information about their dates of employment, pay, whether their employment has ended, and what their claim is. If the prescribed form is not used then the claim will be rejected by the Tribunal.

2. What is an ET3?

The ET3 is the employer’s response to the claim and must also be on a specific form which is available from the Tribunal website. The employer is known as the ‘respondent’ in Tribunal proceedings. The ET3 should explain whether the claims are accepted or denied, and the reasons. 

3. Can an employer complete the ET3 themselves?

We would strongly recommend instructing solicitors at the earliest opportunity when there is a potential claim.  Ideally, this would be before proceedings have been issued by the aggrieved employee, for example, during the ACAS conciliation process or even earlier. 

This is because:

• defending an employment claim is a time-consuming and expensive exercise and if the dispute can be resolved at the earliest opportunity this expenditure can be avoided.
• it is extremely important that the ET3 is robust and accurate and properly addresses every claim being made. A strong defence can result in an early resolution if the claimant can see the weaknesses in their case and that the employer has strong evidence to rebut their allegations. 
• you should address why the claim (or part of it) does not have reasonable prospects of success, or if it includes a claim which is outside of the Tribunal's jurisdiction so that the judge can consider striking it out.

4. What are some of the pitfalls to be aware of when completing documentation?

• making admissions - it is extremely important not to make admissions unless these have been properly considered and are deliberate. If admissions are accidentally made in the ET3 it will be virtually impossible to withdraw those later.         
• complying with deadlines - if a respondent fails to submit an ET3 in time, it can be prevented from defending the claim and judgment may be issued in default. Although it is possible to apply to the Tribunal for an extension to the time limit for responding to a claim, there is no guarantee that the application will be granted. 
• double check limitation dates - there are very strict limitation dates when it comes to issuing a claim. Although it is the responsibility of the claimant to issue their claim in time, every respondent should always check whether the claim brought against them is in time. If there are several claims, each limitation date should be checked/calculated. If the claim is out of time, that is a very good reason for applying to the court to have it struck out. Delaying that application could count against you if you only realise later that the claim should never have been accepted by the Tribunal.

5. Can our directors be sued by former employees?

Yes, claimants can bring claims against named individuals who are employees or officers of the company, for instance in whistleblowing detriment/dismissal claims, and in claims alleging discrimination.

6. Can an employer counter-claim against the employee?

Yes, but only in limited circumstances. This is because employers are not able to bring a free-standing breach of contract claim against former employees in the employment tribunal. They can bring certain contract claims but only if the claimant has brought a contract claim against them, for example, the claimant might have a claim for unpaid notice pay, and the employer wishes to counter-claim for the contractual repayment of training fees.

How 3CS can help

Litigation can be time-consuming, expensive, and highly stressful. Getting the documentation right and presenting your defence and evidence as robustly as possible will help you to navigate the process with confidence. We have considerable expertise in helping clients defend complex employment claims. Please get in touch with your usual 3CS contact for more information.