Thu, Dec

ET1 claims - how to handle them

Legal Eagle

ET1 claims - how to handle them
By Anne-Marie Boyle of Menzies Law

Employment Tribunal (ET) claims were rising before Covid-19 hit the UK but now the risk of finding an ET1 claim form on your desk is a real possibility. So, what should you do if, or when, you receive one?

- Immediately put a note and reminders in your calendar of the deadline for submitting your response to the Tribunal. You have 28 days from when the ET1 is sent to you to submit your ET3 response form. Tribunals are unforgiving about late responses. Missing the deadline will prevent you defending the claim.

You may (but not always) get the ‘heads up’ that a claim is coming if you receive a call from the ACAS Early Conciliation service.

- Check if you have an insurance policy that covers Tribunal claims by employees. You may have cover through a trade association or similar.

- If you find you do have Tribunal claims cover, look at what you’re covered for and quiz your insurer carefully, especially about the lawyers they use and your eligibility.

- Gather and preserve all paperwork. Find the employee’s personnel file and make sure it is up to date. Scan and safely save all hard copy documents, such as letters and signed contracts of employment.

- Find and secure all electronic documents too. Do a search of your server, including your HR team emails, the employee’s emails and their manager’s emails, for all relevant documents and correspondence. Ensure they are preserved and cannot be deleted.

- Speak to everyone named in the claim and get their response, in writing, to the allegations made against them. Doing so while it is fresh in their minds is advantageous. If they later leave your organisation, you may struggle to contact them or convince them to appear as a witness. It could be a long wait to get to the ET hearing so preserving evidence is critical.

- If any important witnesses do leave, try to secure their agreement and co-operation to act as a witness for you. Bear this in mind when negotiating any exit package for them!

- Get good legal advice from the start. Modern ET claims and the rules of claims procedure are complex. We don’t recommend defending an ET claim without an employment lawyer. 

- Look at each element of the claim and start working out your responses. What facts do you agree with (or not)? This will really help your lawyer advise you and draft the response.

- Claimants are often seeking compensation for loss of earnings. Start to gather evidence to help with arguments over how much that should be if you don’t win the case. Any new earnings by the claimant will be off-set against what you might owe.

Finally, you may have heard that the Tribunal system is experiencing rising demand with restricted capacity and that some claimants are abandoning their claims due to delays. Whilst this is true, if you do receive an ET1 you will need to respond. The good news is there is lots you can do to avoid getting an ET1 and our next column looks at these.