Going to a tribunal: The importance of time

Sarah-Marie Williams explores tribunals and what employers need to know.

Q When will an employer become aware that an employee or former employee has commenced proceedings against it?

A Usually only when it receives a letter from the employment tribunal explaining how to present any defence to the claim, with a copy of the claim form (form ET1) enclosed.

Q In what circumstances will the tribunal automatically refuse to accept a defence?

A The tribunal will normally refuse to accept a defence if the employer has not submitted it within the time limit of 28 days, or it is not set out on the prescribed form (form ET3), or the form is not fully completed.

Q Is it possible to apply for an extended time limit for presenting the defence?

A Yes, it is possible to apply to the tribunal for an extension of time to serve the ET3. The application must be in writing, it must set out the case number, why it is not possible to comply with the 28-day time limit, and the reasons for the request.

Q What are the consequences of not presenting the defence within the time limit or not requesting a time extension?

A In such circumstances, the tribunal will be entitled to issue a default judgment. This means that the employer (subject to some limited exceptions) will be prevented from taking any further part in the proceedings. The employer is, however, entitled to receive a copy of any judgment disposing of the claim.

Q What is the difference between a tribunal chair and an employment judge?

A There is no difference. The Tribunals, Courts and Enforcement Act 2007 renamed tribunal chairs ’employment judges’ from 1 December 2007.

Q What is the purpose of the questionnaire procedure in discrimination and equal pay cases?

A A questionnaire may be used in discrimination and equal pay cases as a means of asking questions about the reasons for specific acts or treatment or any matter that individuals consider relevant to their claim. The questionnaire may be served on an employer either before or after a claim form has been lodged in the tribunal. Answers to the questions, which are then used as evidence, must be given within eight weeks from the date of service of the questionnaire.

Q What are “further and better particulars”?

A This refers to a procedure whereby a party to a claim asks questions or requests additional information about the other party’s claim or defence. It is common practice to refer to statements in the ET1 or ET3 and to ask questions about them. If one party does not respond to a request for further and better particulars within a reasonable period (usually seven or 14 days) the other party may apply to the tribunal for an order that a response be provided.

Q What happens after the claim form (ET1) and the defence form (ET3) have been received by the tribunal?

A The next step, in most cases, is for the employment judge to review the file and direct the parties to attend a case management discussion, which is held by an employment judge sitting alone.

Q What is the purpose of a case management discussion?

A A case management discussion enables an employment judge to manage the progression of a case. It is an opportunity to identify the issues between the parties at an early stage to establish whether there are any preliminary matters to be determined. The employment judge will look at whether a request for further and better particulars has been served and whether there are any replies outstanding.

The judge will also address whether expert evidence is required. They may give any necessary orders and set out a timetable of steps for both parties to take in preparation for the hearing. This will usually include the disclosure and inspection of documents, provision of a schedule of loss, exchange of witness statements and preparation of the trial bundle. The length of the hearing, availability of witnesses and the hearing date will also be discussed.

Q What happens at the disclosure stage of the proceedings?

A Disclosure is when the parties are required to provide the other party or parties with a list of the documents in their possession or control that are relevant to the case. Once lists of documents have been exchanged, all parties have the right to inspect the documents referred to on the lists of the other party or parties.

Q How is witness evidence dealt with?

A Witness evidence is provided in the form of written statements, exchanged between the parties before the hearing. Such statements should contain all of the evidence that a witness will give at the hearing. Supplemental statements may also be provided where a response to the other party’s witness evidence is required. At the hearing, witnesses are required to read their statements out loud to the tribunal, before responding to questions.

Q When does a tribunal give its judgment?

A The tribunal’s judgment, with reasons, may be given orally at the end of the hearing, or it may be reserved, and a written judgment issued after the hearing.

Q Which party pays costs?

A Generally, each party bears its own costs. However, a tribunal may exercise its discretion to order one party to pay the other in appropriate circumstances.

Sarah-Marie Williams is a solicitor in the employment team at Clyde & Co

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