If you've done all you can to resolve a dispute but still find yourself up before the beak, make sure you're aware of your responsibilities and you’ve got everything you need at your disposal to fight your corner.
You only have 28 days to respond to the initial claim, so first off collect together every document relating to your ex-employee and their grievance. This should include a contract of employment and documentation relating to the dismissal (if appropriate), any victimisation claims made during their employment, appraisals, your published take on gross misconduct (if relevant) and any disciplinary action taken against the employee.
Additionally, company handbooks and records of training, as well as any policy statements clarifying recruitment practices, health and safety and equal opportunities may back up your case, although keep it relevant.
Hopefully, you'll have ensured that the ex-staff member in question had a witness present during any disciplinary and dismissal procedures and that signed statements can verify your version of events.
Also, sit down and list every member of staff present on the day/s in question and any involvement they had in incidents leading up to disciplinary measures or dismissal.
Secondly, find the right law firm. If you choose to be represented by a 'friend' then make sure they have experience of tribunals and knowledge of employment law. For a good solicitor, talk to peers and friends. The Law Society may also be useful. You'll need experts in employment law.
Some solicitors offer the first consultation for free. All you're doing initially is telling the story as you see it and presenting any corroborating evidence you have, from which they can make a judgement on whether it's a case worth defending. Ask for an estimated cost on a stage by stage basis. A relevant law firm’s hourly rate is typically between £175 and £300.
You must respond to the ET1 form that was filed against you by the applicant with an ET3 form. This can be downloaded from the Employment Tribunals Service website (www.employmenttribunals.gov.uk), or filled in and submitted online.
By law, your response must include the following:
- Your full name and address
- Whether you want to resist (defend) all or part of the claim
- The grounds on which the claim is being resisted.
If your response is not submitted on the approved form, does not contain the required information or is not received within the specified time limit (within 28 days of the date on which the Tribunals Service sent you a copy of the claimant’s claim form), it will be returned and the claim will be dealt with as if a response had not been received. In this case, the tribunal may consider issuing a default judgment – this allows an employment judge to make a decision about the claim without you having to attend a hearing.
There are five main grounds for defending an unfair dismissal claim: incapability, conduct, illegality, redundancy and incapacity, where the person is considered too ill to work. These enable you to argue that the dismissal was fair. However, incapacity can be difficult to prove, and you must be also be mindful that you are not discriminating against a person with a disability under the Equality Act 2010.
Automatically unfair reasons for dismissal (regardless of whether a fair process was applied) include reasons relating to pregnancy or childbirth, union membership or where an employee was sacked for asserting a statutory right.
If the claim is for breach of contract, you will be entitled to make a counterclaim. This must be filed within six weeks of receiving the copy of the claim from the Tribunals Service. (You will need to ask the tribunal office to send you the appropriate counterclaim form).
Whatever the claim, brief your solicitor thoroughly and honestly. Don't hide anything that could emerge later. This will enable them to assess the strengths and weaknesses of your case. Even practise role-playing.
Try to get the case struck out. This is possible if your solicitor believes there is no valid basis on which the claim was made or if the claim is, in your solicitor's opinion, frivolous or vexatious and will waste the tribunal's time.
How does arbitration work?
Once you have submitted your response, an Acas conciliator will contact you to explore whether it may be possible to resolve the claim through conciliation without the need for a hearing. Acas is automatically informed about every claim. It also has a free helpline, which you may use as a starting point. In certain cases (claims of unfair dismissal and those relating to flexible working legislation) Acas will offer to arbitrate and this could prove cheaper than losing after going the distance.
If you choose not to go to Acas it will not affect the case. If you eventually settle, a COT 3 form will be used, with Acas acting as an intermediary to finalise the terms of the agreement between the parties, which is legally binding. However, if you choose to settle be wary about entrusting your solicitor to do all the talking on your behalf; remember it's you who has to deal with the consequences. So, either take care of the negotiations yourself or make it very clear what terms you'll be willing to accept.
You are only permitted to disclose documents that are relevant to the pleadings. Consult the ET1 and ET3 forms to confirm who is arguing what. Evidence is exchanged simultaneously and then you compare them, checking that all the relevant documentation is there. If documents have not been disclosed then it is important to write to the tribunal so that they can make an order for disclosure. You should want to know what steps have been taken by the applicant to find alternative jobs as they can't claim loss of earnings and future earnings without backing it up.
What to expect at the hearing
It's quite possible that you'll attend the court on the day of the hearing only to find that your case is in a queue and cannot be heard that day. This can mean extra outlay for accommodation and travel, and affects the running of your office or company premises, so be prepared.
However, once in there, the panel you will face is made up of a legally qualified chairperson and two lay members, one of whom represents workers' organisations and the other nominated by employers' organisations. The length of a hearing is unpredictable, so be prepared for the long haul.
Remember, employment tribunals are highly emotive, so look at it from a commercial point of view. Treat it as a transaction, detach yourself and let the lawyers or somebody you have chosen to represent you do the talking.
You are free to call witnesses and produce written evidence supporting your case. The hearing is conducted under oath, but the rules of evidence are more relaxed than civil litigation. You will be examined by your counsel and then cross-examined. The chairman may also ask questions. When asked questions, stick to the facts. Do not pass comment on the applicant's character or motivation.
You might think it's an advantage if existing employees can corroborate your version of events. However, tribunals are aware that existing employees find it hard to give evidence against their own bosses, so don't rely on it.
Once the applicant's and your arguments have been given and you've responded to points made by the applicant the panel will retire to consider their verdict, which can be a stressful time and often lasts an hour or more. With a bit of luck, strong evidence and good representation, it will be you leaving as victor.
What about appeals?
You can app
eal against the decision made, but only on a point of law (you must identify flaws in the legal reasoning of the original decision). Your appeal must be made on ‘EAT Form 1’ and submitted within 42 days of the date on which the written decision was sent to you. New evidence also enables you to ask the tribunal to review its decision. Applications for review must be made within 14 days from the date of the decision.