Defending employment tribunal claims

We have been contacted by ACAS - what does this mean?

The first step in the legal process is for the claimant (the employee) to contact the Advisory, Conciliation and Arbitration Service (ACAS) and undergo a process known as ACAS conciliation. ACAS assign an individual conciliator to the case, whose role is to facilitate a dialogue between the parties on the issues in the case to try and resolve them before the case grows into an employment tribunal claim.

What can we be taken to the employment tribunal for?

The employment tribunal presides over a wide range of claims and employment disputes. However, most commonly, the tribunal will deal with matters of unfair dismissal, constructive dismissal, discrimination, whistle-blowing, TUPE and wage disputes.

What do we do if we receive a claim from the employment tribunal?

If ACAS conciliation is not successful, then you may receive formal notification of a claim from the tribunal (by post or by email) enclosing the claimant’s tribunal claim (known as the ET1 claim form). At the same time, you will receive response from (known as the ET3 response form) which you can complete and return by post, on the gov.uk website or download the ET3 response form and submit it by email to the relevant tribunal.

It is vital that you submit your defence in time. You must lodge your response within 28 days of receipt. If you do not respond within this timeframe, there is a real risk that the claim could be decided against you and the claimant succeeds and goes on to receive compensation.

When and where would an employment tribunal hearing take place?

Usually, the lifespan of a simple tribunal claim is 3-9 months. However in recent years, with the increase in claims arising from the pandemic, claims are lasting longer with complex discrimination or whistle-blowing claims, lasting for up to 2 years. The tribunal generally prefer for the hearing to take place in person at the tribunal venue closest to the place of work. However, in light of the pandemic, there has been a significant increase in cases being heard remotely via video link.

If the claimant succeeds, what compensation will they be awarded?

The compensation which can be awarded by the tribunal varies depending on the nature of the claim. In cases of unfair dismissal, compensation is made up of:

• A basic award, which is a fixed sum which is equivalent to a statutory redundancy payment
• A compensatory award, which is to compensate them for the actual money you have lost as a result of losing their job (up to a maximum of one years’ salary or £93XXX, whichever is lower)

However, in cases of discrimination, automatic unfair dismissal or whistle-blowing, the compensation is unlimited. In addition to financial losses suffered by the claimant, the employment tribunal can award compensation for injury to feelings and damage to health which in some cases can result in significant awards of £10,000s or £100,000s.

The good news is that even where a claimant is successful with their claim, there are ways to argue a reduction in the compensation which the Tribunal should award the claimant, such as:

• Polkey deduction – where there was a procedural defect , but the decision was inherently a fair one
• Contributory conduct – where the employee was at fault in full or in part for the decision which you made
• Failure to follow the ACAS code of practice – where the employee failed to meet the expectations placed on them as part of a disciplinary process e.g. failed to appeal their dismissal without good reason
• Failure to mitigate their losses – where the employee has not met their duty to take reasonable steps to find new employment or recover their losses

How do we fund our employment tribunal defence?

There are two primary options or funding a defence in the employment tribunal, legal expenses insurance and private paying.

Legal expenses insurance

Many businesses will require insurance in place to operate their business. As part of this type of cover you may also have the benefit of a legal expenses insurance policy which can sometimes cover legal assistance in the employment tribunal or County Court. You can check this by looking at your policy terms, or contacting your insurer directly.

Right to choose your own representation

You do have freedom of choice to select the solicitor you would like to instruct, and we have extensive experience of acting for clients with this type of policy. Upon becoming aware of a claim, you should contact your insurance company as soon as you can and advise that you wish to instruct your own solicitor to assist with the claim.

We would be happy to liaise with the insurers on your behalf to quickly secure cover.

Paying privately

We charge based on hourly rates which will reflect the level of experience and seniority of the solicitor working on your case. Range of costs:

Defending a claim for unfair dismissal - Between £5,000 - £8,000 plus VAT and third party costs.

Defending a claim for discrimination or a combination of unfair dismissal and discrimination - Between £6,000- £10,000 plus VAT and third party costs.

Prices quoted are for representation throughout the full stage of proceedings up to a final hearing. Work would include the draft of initial pleadings, attendance at a preliminary hearing to discuss case management, dealing with the case management orders including; preparation of a schedule of loss; dealing with disclosure of documents/preparation of a bundle and drafting of witness statements. We would also instruct and liaise with a barrister for any final preparations before attending the final hearing.

Third party costs including a barrister attending the hearing can range from £400 - £4,000 depending on the length of the hearing and experience of the barrister. We will inform you as early as possible about the costs of the barrister.

We do not require payment of all of these costs up front. We can agree a payment plan over the course of the case to help you manage your cash flow.

On average an employment tribunal can take up to 12 months though this depends on each case. However, given the current backlog in the employment tribunal, cases can take up to two years to reach a conclusion. However, at each stage during the case, we will assess the merit of a potential settlement and determine whether there is a proportionate resolution to be found.

Can we recover our costs if we successfully defend the claim?

The general rule in the Employment Tribunal is that each party bears its own costs, win or lose. However costs can be awarded in favour of a party if:

• The other party has acted vexatiously, abusively, disruptively, or otherwise unreasonably in the bringing or conducting of the proceedings, or a part of them
• The other parties’ claim has no reasonable prospect of success
• The other party has breached of any order or practice direction
• A hearing has been postponed or adjourned on the application of a party

We will provide you with you further advice on this as the case progresses to tribunal.

What qualifications do the employment law for businesses team hold?

All employment law work is supervised by a qualified solicitor. Specific experience can be seen in the individual profiles.