Legal

How to defend an employment claim

29 May 2018 By Michelle Morgan

It can be a stressful time for any organisation, but there’s plenty you can do to prepare, as Michelle Morgan explains

Since the removal of issue and hearing fees by the Supreme Court in July last year, employment claims have been on the rise. In the three months following the significant ruling, claims rose by 66 per cent compared to the three months before. With the initial fee now abolished, a higher number of employees will be willing and financially able to challenge their employers, putting organisations at ever-greater risk of a claim being brought against them. 

So, how can an organisation best plan and prepare when defending an employment claim? 

  • Check whether the employee has brought their claim on time. The general rule is that an employee has three months from the termination date in which to bring a claim (or, in discrimination claims, from the date of the discriminatory act or the last event in a series of discriminatory acts about which they are complaining). There are limited circumstances in which the tribunal will allow the employee an extension of this period. If you believe the employee is out of time, your response ought to state this and so the tribunal has no jurisdiction to hear the claim.
  • Make a note of the deadline to respond to the claim. You have 28 days from receipt of the ET1 to respond (which needs to be filed with the tribunal on form ET3; this can be done online). The tribunal will notify you of the final date for your written response – this date is strict and there are limited circumstances that allow it to be extended.
  • Check who the employee has brought the claim against. Is it the correct employer? This is of particular importance where group companies are involved, or in TUPE situations.
  • Understand what claims the employee is bringing. We often find that other complaints are embedded within the ET1, so read thoroughly and, if in doubt, you will need to make a request to the employee for ‘further and better particulars’.
  • Consider and deal with every allegation. Ensure your response covers all matters raised by the employee either by responding to each point paragraph by paragraph or by putting forward the company’s version of events in its own way. You should always seek legal advice where necessary, particularly where the claims are complex.
  • Start collecting and preserving evidence early, including evidence that could be used in mitigating the employee’s losses (look on job sites, vacancy boards and suchlike). Evidence that is fresh in the witnesses’ minds is the best – start talking to the people involved and take statements. You should begin to compile any relevant documents and put together the company’s version of events. If you think you will need more time to collect evidence then consider requesting an extension for submitting the ET3, but be mindful that the chance of this is slim.
  • Think about whether it is necessary to apply for a pre-hearing review – often made when the employee’s claim is out of time, where there is no reasonable prospect of success or if the tribunal doesn’t have the jurisdiction to hear the claim.
  • Consider early settlement, particularly where there is a high risk that the employee will be successful in their claim, or if the financial and emotional costs will be too high to fight it. Use the correct language when ‘brokering’ a deal so that protected conversations are just that.

It may be that the company wants to make a point out of the litigation – but be wary that the cost of ‘principle’ can be expensive.

Michelle Morgan is a senior associate in the employment team at Gardner Leader

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