The starting point
For all issues, except that of dismissal, an employee must officially raise an internal grievance with their employer before taking it to an employment tribunal. This allows the employer and employee an opportunity to resolve the dispute without a formal claim being submitted to a tribunal. However, if it is not resolved within 28 days, the employee may submit a claim.
If this process is not undertaken, an employment tribunal may reject the case before it reaches the hearing.
An employee usually has three months from the time of the incident to submit an internal grievance. Once they have done this, they then have another three months to bring the case to tribunal. If this three-month timeframe has lapsed, it is not always possible for the employee to approach a tribunal subsequently, depending on the type of claim.
How to respond
If the employee is not satisfied with the outcome of the internal grievance and wishes to submit a claim, this can be done by completing an ET1 form. This can be downloaded from the employment tribunal website . At this stage, the employer should check the details to ensure they are correct. If the employee has been dismissed and is submitting the form externally, HR staff must ensure that the form is registered with them.
In preparation for the tribunal, the employer needs to fill out a ‘Notice of Appearance’ (ET3) form. This should include a brief summary of facts as viewed by the employer regarding the allegations and the employee’s work history. It is not necessary for the employer to counter every single incident, but it should act as a general statement regarding the employee’s claim and the employer’s position.
It is crucial the employer makes clear in the ET3 form that they do not accept any of the facts presented by the employee, apart from basic information, such as length of employment. In short, they need to make it clear that the claim is rejected.
If the employee has been dismissed, the employer must state the reason for the dismissal in the form. The legitimate reasons for dismissal are set out in the Employment Rights Act 1996.
Compiling the evidence
Once the employer has completed the ET3 form and submitted it to the tribunal, conciliation service Acas will be sent a copy of the proceedings so that it can assist with any potential settlement. There are now strict time limits as to when an Acas settlement is available, to encourage both the employer and employee to focus on a potential settlement.
Next, the employer and employee should agree a ‘List of Directions’. This will detail which witnesses will need to give evidence and when statements should be exchanged. If this is not done, or where there are more complex issues, the employment tribunal may hold a case management conference to establish this list and get a time estimate for the hearing.
The employment tribunal will then issue a date for the hearing. The employer and employee must both comply with any orders relating to disclosure of statements and other evidence detailed in the List of Directions.
All the paperwork, including written witness statements, will form a bundle that will be exchanged just before the hearing, so everyone involved can see the evidence. At least five photocopies of all the contents of the bundle should be made, the pages numbered and a contents list prepared. This will help everyone at the hearing follow the evidence as it is given on the day of the hearing. Last-minute ‘courtroom drama’ surprises are not welcome.
A brief list of key events should also be agreed, if possible. This is called a ‘Chronology of Events’.
The parties should also produce another summary, listed in date order, called an ‘Agreed Statement of Facts’. This will include details of witness statements and cover all aspects regarding the employee’s claim. This is extremely important because it means that submitted statements cannot be embellished at a later stage.
Do not include any ‘without prejudice’ correspondence in a bundle of papers for the hearing, as it is entered into with the aim of reaching a settlement.
Preparing staff for the tribunal
It is likely that the majority of staff who attend a tribunal will not have appeared as a witness or participated in the process before. Talk through the stages of the tribunal with the staff and discuss any potential difficulties. It is also useful to cover basic facts, such as where the staff will be expected to sit, what swearing on oath entails, and what will happen in terms of being cross-examined. This will help to reassure staff who will be presenting crucial pieces of evidence for the employer’s case.
It is illegal for the employer’s legal representative to ‘coach’ staff in preparation for their appearance at a tribunal. However, the witnesses will generally be allowed to read aloud their prepared statement and the legal representative can suggest which questions are likely to be raised in cross examination. This could be helpful in enabling the staff to prepare mentally for the tribunal.
HR should also highlight that those staff who are due to attend the tribunal as witnesses are able to give “yes/no” responses to questions or ask for clarification. This is often forgotten under pressure, but can be a good way for staff to collect their thoughts during the hearing.
It is crucial that the employer prepares a defence to refute the employee’s claims, and it is worth seeking legal representation to strengthen your case.
There is no strict requirement for legal representation in tribunals, but a solicitor can help by preparing submissions that make reference to relevant case law and statutory provisions. The ‘case law’ includes previous examples of case decisions that are comparable to the case in question. The tribunal can be asked to follow those decisions that are favourable to the employer, and to try to distinguish those that are not so favourable.
One of the most common pitfalls is a lack of preparation. Being prepared includes ensuring that HR staff have a thorough knowledge of the content of all submitted documents. A prepared timeline of the employee’s work history and the dates of the alleged discriminatory incidents will be extremely useful during the hearing.
It is also worth noting that the tribunal can order the disclosure of all communications, including e-mails, rough notes and scribbled comments.
For this reason, it is important that staff are aware that their e-mail system may be vetted, which should be made clear in the company’s e-mail policy. Managers should also be cautioned generally about making sarcastic or other inappropriate comments on the personnel file.
Surviving an employment tribunal
- Employers or HR staff should note down every detail around an employee’s actions as soon as they are aware of a grievance. This will help to make the process of sifting through the evidence as smooth as possible.
- Good preparation for a tribunal is crucial. HR staff should ensure that all of the forms are in order, the requested evidence is available and that staff feel confident about appearing as witnesses.
- Check out the Employment Tribunal website for further tips and advice.
- For guidance on employment tribunals visit the Acas website
For more information on employment tribunals, see the latest issue of Employers’ Law, out on 13 September
Guy Guinan is an employment partner in the London office of national law firm Halliwells. His areas of expertise include unfair dismissal, breach of contract claims, executive terminations, setting up large-scale redundancy schemes, discrimination claims, trade union law and TUPE.