Fighting a tribuanal case

You have dismissed an employee, and a set of forms from the Employment Tribunal has landed on your desk saying the employee is claiming that you dismissed them unfairly. What do you do? For employees, it is quite simple to bring a claim: it's free and a Tribunal is just one click away - but what will it cost you?

Claims should be dealt with immediately as you have 28 days to respond from the date the forms are despatched by the Tribunal. Missing the deadline means you cannot take any further part in proceedings, and a default judgement in favour of the employee will normally be issued.

Don't miss the deadline

You can apply for an extension of time to lodge the response, but the application has to be made within the 28 days, and you must satisfy the Employment Tribunal that it will be fair to grant the extension. As a result, make sure that you regularly check post sent to your registered office. A claim form may have been sent to the company's registered office, which may be different from your business address.

The Tribunal will send you the ET1 claim form - notification of the claim including the date you must respond by, the case number and an ET3 form. Return the ET3 form to the Tribunal setting out your response to the claim.

Check and double check

But before returning the ET3 form, carefully check the details the employee has put on their ET1 form, including the place of employment, dates of employment, details of pay, and other benefits. You may disagree with the dates, and have a case that the claim has been brought out of time, or that the employee has not been employed sufficiently long enough to be able to bring a claim.

Next, gather the papers and documents relating to the claim, and speak to any managers or employees referred to in the claim and obtain their responses. A well-pleaded response prepared by your solicitor will be a sound investment. Alternatively, the advice may be that you do not have a good case and should concentrate on trying to settle at an early stage in order to save costs and avoid adverse publicity.

Timetables and schedules

Once your response is received, the Tribunal will normally issue a set of directions and orders. These set out a timetable which must be kept to. As part of the directions, there will normally be a provision that each side prepares a list of documents relevant to their case and agrees a common bundle of numbered documents. These documents can help significantly in proving a party's case.

You will need to comply with these directions and orders as failure to comply can eventually lead to your response being struck out and/or to an order that you pay costs.

The Tribunal will often arrange a Case Management Discussion in order to clarify the issues and the orders to be made in a case. It is prudent for the employer to be represented at a Case Management Discussion, particularly where issues are to be clarified, or orders to be made, relating to more complex issues such as medical evidence.

In other cases, a Pre-hearing Review can be held to decide a particular point such as whether an employee is disabled, or whether the claimant is an employee and not self-employed. Such points can be fundamental to a case and a decision following a relatively brief hearing may mean that the whole case or, part of it, will not proceed further. As the result of a Pre-hearing Review can have a decisive outcome, consider representation at a Pre-hearing Review.

The Tribunal will fix the dates of hearings. It is up to you to ensure that you and your witnesses can attend on the date fixed; if the date is inconvenient, you must tell the Tribunal immediately.

As part of the Tribunal's directions, each side will be ordered to prepare and exchange written statements from their witnesses a few weeks before the hearing. The statements should contain the case of each party and refer to the particular documents in the agreed bundle as evidence of any particular point.

At the Tribunal, the statements may be read by the witnesses or taken as read. In this way, evidence is not a test of memory, and rarely would one party be able to ambush the other with last-minute evidence. Witnesses, however, are cross examined by the other side and the Tribunal members may also ask questions.

As written statements form such an important part of the evidence, it is advisable that they are prepared properly to ensure they are clear, to the point, and refer to all the relevant evidence. Failure to include relevant evidence in a statement may mean that it cannot be included later on.

It can be costly

The normal rule in litigation is that the loser pays the winner's costs. However, in Employment Tribunals, each side normally pays their own costs whether they win or lose. The Tribunal can order one side to pay the other side's costs where a claim or defence has no merits, or where one side conducts the proceedings unreasonably, including failing to comply with Tribunal orders and directions. However, cost orders are made in only a minority of cases.

You should, therefore, take advice to assess the merits of the case and decide whether it is commercially sensible to settle the case early in order to avoid the legal costs that can form a significant part of the amount in dispute.

The maximum compensatory award for unfair dismissal is capped at £65,300 (rising on 1 February 2011 to £68,400), but for a number of claims, particularly discrimination claims, there is no cap and six-figure sums can be awarded.

Remember that there is a lot employers can do now to strengthen their position for any potential dispute, including having clear and up-to-date policies and procedures, up-to-date contracts of employment, and comprehensive HR records.