How employers can best defend tribunal claims post-Covid

Beverley Sunderland provides tips for businesses on defending employment tribunal claims in these post-pandemic times

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One of the biggest issues facing employers in this post-Covid era is the fact that many businesses have not returned to the office full time, or at all. Many have closed offices down completely with everyone working from home. When employers have either long moved out, their postal redirect has lapsed, or the office is manned by inexperienced employees who do not understand the importance of what has arrived, tribunal claims are being missed. Any business that has a claim issued against it is required to provide a response within 28 days, or run the risk of not being able to defend the claim at all. 

It is important to ensure that any postal redirect on business premises is in place for at least 12 months and any skeleton staff still manning offices are briefed on the importance of any documents that have emanated from a court or tribunal and that they should be flagged immediately to a senior member of staff and not left for the next time they might be in.

So, what does an employer do if they have received a claim form and the date for a response has passed, or they get a hearing date and this is the first they have heard of the case? The starting point is to take specialist employment law advice immediately, or if they are not able to do so at least email the tribunal (the email address will be on the letter) and in the title of the email quote the case name and reference number and mark it ‘urgent’. They should explain that they have only just received the claim and/or have no knowledge of this case that they have received a hearing date for, and are seeking urgent legal advice and ask for all relevant documents and an extension of time.

Another issue for employers has been that with employees working from home, there has been more emailing, texting and WhatsApping on work phones – especially between HR and management during a disciplinary or grievance process – in the mistaken belief that they are all covered by privilege. Only correspondence with the solicitor for the purposes of seeking legal advice is privileged. Once a claim is made, there is the benefit of litigation privilege for internal correspondence, but often the damage is done at an early stage. 

It is important at the outset of any claim to ascertain what there is in writing that would be disclosable and possibly detrimental to the company’s pleaded defence. As tempting as it may be to delete offending messages, to do this ahead of a subject access request is a criminal offence and ahead of tribunal hearings is contempt.

With everyone working remotely, gathering disclosure documents and interviewing witnesses in person have all become difficult, this is even harder where businesses were sold, or employees were made redundant during the pandemic as a result of cost cutting measures. 

HR should send a standard email out to all of those involved in a case carefully explaining their disclosure obligations and providing a designated place for all relevant documents to be placed on the server. Witnesses should at the very least be interviewed over Zoom/Teams as a nervous witness can often lose a case. If the hearing itself is via video link, then agreed methods of communication should be put in place at the outset, with very clear instructions that no-one is to attempt to contact a witness during their evidence until it has been completed.

The employment tribunals are overburdened and still struggling to clear the backlog of cases that built up during the pandemic, so new tribunal claims submitted six months ago are still arriving, and these can take upwards of 18 months to be heard. There are advantages to this, but it does also mean that a business can be subject to litigation for over two years and there is always the risk that it could have an impact if the business was looking to sell to a prospective buyer, or in respect of indemnity insurance prices.

Beverley Sunderland is managing director of Crossland Employment Solicitors