How to prepare for an unfair dismissal case

In the current economic climate and with redundancy programmes commonplace, it is perhaps unsurprising that disgruntled employees are keeping the employment tribunals busy with complaints of unfair dismissal. The latest employment tribunal statistics show that in 2008-09, the number of unfair dismissal cases was up by 29% on the previous year to a total of 52,711.

In light of these statistics, it is more important than ever that employers know what to do if faced with a complaint of unfair dismissal. This article takes a look at the anatomy of an employment tribunal claim. It highlights each of the key steps and outlines strategies for employers that find themselves on the receiving end of a claim. Awareness of these steps should assist employers to manage any claim that should arise and, ultimately, give the best possible chance of a favourable outcome.

Responding to an ET1

Employees are no longer legally required to bring a written grievance before lodging a complaint of unfair dismissal at the employment tribunal. Therefore, the first that an employer may know about the complaint is when it receives a copy of the ET1 form from the tribunal.

The employer must respond to the claim on an ET3 form within 28 days of the date on which it was sent a copy of the claim (not the date it received it). It is essential that the employer responds within this time-frame. If it does not, it will be debarred from taking any part in the proceedings, except in restricted circumstances. An application for an extension of time to make a response must be made within the 28-day time period.

The employer’s response must be carefully drafted and, if appropriate, legal advice should be sought. Generally, the response should set out the employer’s case in answer to the allegations made by the employee and make clear what is and is not in issue. The employer must also ensure that any explanations are consistent with contemporaneous documents, which will have to be disclosed.

Disclosure

Documentary evidence is likely to play a key role in the success or failure of the employer’s defence to the employee’s claim. The employer will have to disclose to the employee’s representatives any documents that are relevant to the claim, even if they are not helpful to its case, and must ensure that it has carried out a thorough search for any relevant documents.

Documents are not limited to paper, but include anything on which information can be stored or recorded. This means documents created and stored on computers will be covered, as will any video or tape recordings or photographs.

Sources likely to contain documents relevant to issues in a claim brought by an employee include:

The personnel file
Staff handbooks or manuals, company notice boards or intranet site
Training records and monitoring forms
Internal communications.

The relevant documents should be placed in a bundle, together with any documents from the employee.

Witness evidence

In general, tribunals will direct that witness evidence must be provided in the form of written statements, to be exchanged between the parties before the hearing. Even where such a direction is not given, the employer will need to prepare a written statement of the witnesses’ evidence.

The witness statement should explain how the witness is involved with the parties to the proceedings and should set out all the evidence the witness can give with regard to the matters in dispute.

The statement should also refer to any documents in support that are contained in the bundle. The evidence must be in the witness’ own words and be accurate and truthful. It is essential that each witness is briefed on what to expect at the tribunal hearing and that they have been told, in advance, how to address the tribunal panel.

Trade union representation

If the employee is represented by a trade union, there are some particular considerations to take into account. For example, as the employee will not be personally funding the case, there is an increased likelihood of the claim progressing all the way to hearing. Therefore, if the employer considers that the employee’s claim has no prospect of success, it should consider whether to bring pressure to bear on costs – for example, through a costs warning letter.

The employer should also be mindful that the individual employee’s claim is likely to raise the litigation awareness of other union members. And there may be an increased chance of adverse publicity.

Acas

Complaints of unfair dismissal are the most common claims arising for conciliation. Acas can play a key role in conciliating between employer and employee. Employers should take advantage of the opportunity to use its services, as it may assist in an early resolution of the employee’s complaint, reducing the employer’s costs of dealing with the claim and minimising management input time.

Kate Hodgkiss, employment partner, DLA Piper

Key points

Employers should ensure they complete and return the ET3 within 28 days of the date on which they were sent the ET1. If extra time is required, an application for an extension of time must be made before the 28-day period expires.
Employers must disclose any documents that are relevant to the claim and should carry out a thorough search for these documents in any medium in which information can be stored.
Witnesses should be fully prepared for the tribunal hearing.
Employee representation by a trade union may increase the likelihood of the claim progressing to a hearing and may influence the tactics employers use to defend the claim.
Employers should use the services of Acas to try to achieve an early resolution of the employee’s claim.