Legal Q&A: preparing for a tribunal

Dealing with a staff dispute can be trying, but what if it goes all the way to tribunal? Senior HR staff will be anxious to ensure they do everything they can to help their employer win, but what should this entail? Is it really a matter of following procedure or is there more to it?

Q If an employee threatens to take an employer to tribunal what should HR do at that stage?

A It depends on what stage the threat is made at. If there are grievance and/or disciplinary proceedings pending, deal with these in the usual way and ensure that accurate notes are made of the meetings and that responses are sent out to the employee without delay and in accordance with the employer’s policies.

Q What documents should be expected from a tribunal once the process begins?

A The tribunal will send you a copy of the employee’s claim form (ET1) a blank form ET3 (for the employer’s defence) and a ‘notice of claim’ which sets out the deadline to respond to the ET1. Diarise the deadline! If an employer does not file an ET3 in time and has not applied for and been granted an extension of time to file the ET3, the claim will proceed as undefended or a default judgment can be given against the employer.

After the ET3 has been filed the tribunal will contact the parties with either a list for the management of the case (setting deadlines for things such as exchange of witness statements), or set a date for a case management discussion to agree these deadlines.

Q How best can the HR department prepare for a case?

A Once you receive the ET1, start collating the relevant documents, including the employee’s personnel file, relevant policies/procedures and minutes of meetings, etc. Give your solicitor as much notice as possible of the claim so that they time to draft the ET3, make any relevant applications to the tribunal and review all of the papers. It always takes some time to finalise an ET3 before it is filed at the tribunal so this stage is very important.

Keep the individuals within the business who are involved informed, for example, the employee’s manager or colleagues about whom allegations may have been made.

Q What documents are key to fighting a case?

A A well drafted ET3 is crucial as this is the time to make clear any jurisdictional arguments you may have, such as claims being out to time or insufficient particulars of a claim being provided.

Where the employee has not set out enough detail in the ET1 to properly allow the employer to defend the case, you can request additional information by way of specific questions. Any such requests are also important as these can clarify the case which is being defended.

Well-drafted witness statements that are consistent, clear and refer to the documents in the tribunal bundle are essential in explaining your case. In connection with documents, the tribunal will set a deadline by when you will be required to disclose to the other side all documents that are relevant to the case. This includes documents that help and undermine your case. This duty is a continuing one so, if you locate relevant but undisclosed documents after the disclosure deadline, you should pass these on to your solicitor to disclose to the other side.

Q What will an employer’s solicitor require to help fight a case?

A Try and provide instructions in relation to any ET1s in good time so that your solicitor has sufficient time to produce the best ET3 for you, plus full disclosure of all relevant documents and information about the case. Don’t pre-audit what you tell your solicitor – they will be in a better position to advise you if they have the full picture. Things you may think are not that relevant may actually be useful background information or crucial to the case.

You should make sure that you are generally available on the day before and the day that the ET3 has to be filed and witness statements are to be exchanged, to approve final versions, etc.

Q What should an HR manager bear in mind if called upon to give evidence?

A Your evidence will be set out in your witness statement, so you must be happy that the statement is accurate. You will be required to give your evidence on oath and then once you have given it, you will be cross examined on it by the claimant’s representative. Your best approach is to simply answer the questions being asked of you. When you are under oath you should not talk to anyone, including your solicitor and other witnesses, about your evidence.

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