Successfully defending an Employment Tribunal claim
22/11/2011
By Susanna Gilmartin, Partner in Employment.
It is quick and easy for an aggrieved employee to start a claim in an Employment Tribunal. This leaves the employer with a difficult decision – to defend the claim or settle. This article gives guidance to employers.
To issue an Employment Tribunal claim simply requires an employee to complete a form online and email it to an Employment Tribunal. There is no issue fee and there are no costs awarded to the successful party. This means that an employee can start a claim on a purely speculative basis in the hope of triggering a settlement offer from the employer.
Faced with the costs and the time-consuming nature of defending a claim it is tempting for an employer to try and settle the claim on a commercial basis. Companies often feel that the odds are stacked against them and that tribunals are employee-biased making it more cost- effective to settle. However, the benefits of settling a claim need to be weighed up against the costs to a business of being seen as a ‘soft touch’. This can result in an increased number of claims and disputes with employees who believe that they may be able to secure a quick compensation win.
The key for employers is to take charge of the claim from the start and follow these key steps:
- prepare a defence setting out clearly and concisely the chronology of events and the processes applied;
- identify the legal weaknesses of the claim. Highlight these from the start and keep highlighting them throughout the case;
- attack the credibility of the claim by drawing out inaccurate and false information used by the employee to support his/her claim;
- make appropriate cost warnings during the conduct of the case. Tribunals will award costs for unreasonable conduct during the course of the proceedings – pursuing a claim that has no prospects of success is unreasonable conduct;
- recommend to an employee who is not legally represented that they seek independent legal advice as to the merits of their claim. There are many free employment advice centres and Judges are not sympathetic to claimants who do not seek advice, particularly when they are invited to do so and their claim has little legal merit;
- invest time in preparing detailed witness statements setting out the background to the claim and putting the issues in dispute into context;
- admit from the start if part of a process has been missed out or not followed. Nothing will irritate a Tribunal more than an employer trying to justify actions and processes it has not implemented. Do however provide an explanation for failing to follow a process.
The employment team holds regular mock tribunal events, designed to give you a chance to experience the realities and drama of a tribunal hearing. For more information, view a video podcast of a recent mock tribunal or contact Susanna Gilmartin.