Even with the right policies and procedures in place, sometimes you simply can't avoid an Employment Tribunal claim - especially in times of change and uncertainty. Preparation is key to effectively managing a claim.
Following Part 2 of our webinar series on Employment Tribunal claims, here are our top tips to help you manage Employment Tribunal claims:
1. Consider whether early settlement is a realistic and desired outcome
Before a prospective claimant can submit a claim in the Employment Tribunal, they will first (other than in certain limited situations) need to comply with the pre-claim conciliation requirements by notifying ACAS, the Advisory, Conciliation and Arbitration Service, of their potential claims. This triggers a pre-claim conciliation period of up to six weeks, if both parties are willing to engage, offering an opportunity to try to resolve matters before a formal claim is filed. There can often be a greater willingness on both sides to try to resolve matters at this early stage and before the parties become more entrenched in their positions as litigation progresses.
Early settlement may not be a realistic or desired outcome if you are facing an unreasonable or vexatious claim, but if it is a realistic option an early resolution can save significant management time and costs.
2. Collate the key documents and information early on
If you are aware that a formal claim is likely, take proactive steps to identify the relevant individuals involved in the dispute and start gathering key documents and information. Once you receive the claim form from the Tribunal, you will have only 28 days to file your Response (defence) with the Tribunal. Complex cases with large volumes of documents will take longer to get on top of so that you, or your legal representatives, can prepare and submit the Response.
3. Assess the merits and consider your strategy
Consider the prospects of successfully defending the claim early on so you can adopt a suitable strategy. Some examples of key points to consider:
- Do you have supporting evidence to defend your position or is there a key witness or a key document which significantly undermines your case? You will be obliged to disclose to the claimant all documents that are relevant to the issues in the claim, whether or not those documents are helpful or harmful to your position.
- Are your key witnesses still with the business?
- Will they be available to provide assistance throughout the life of the claim process and at the final trial?
In complex cases, obtaining a formal legal opinion on the merits of the claim at an early stage can assist in formulating your strategy.
4. Ensure key dates are diarised and allocate sufficient time to comply
The management time involved in responding to and managing a claim is often underestimated and the parties will be required to comply with Case Management Orders. Ensure that all key dates are diarised and that you have notified all relevant individuals of these and checked their availability to assist. Failure to comply with Orders can result in a claim or response being struck out, a party being barred or restricted from participating in the proceedings and/or a costs award being made.
5. Ensure witnesses are prepared for the final hearing
The final hearing can be stressful for the participants, particularly for those who have not had any experience in defending a claim. If at all possible, it can be helpful for witnesses to attend a remote or (when permitted in the current pandemic climate) an in-person hearing as an observer to get a feel for what's involved.
Ensure that your witnesses are also fully briefed and understand in advance the Tribunal's rules on giving evidence at remote and in-person hearings.
7. Ensure you understand the potential outcomes and their likely impact
The potential outcomes of the claim and their likely impact should be considered at the outset and throughout the claim process to assess and minimise any anticipated detrimental impact. As well as the possibility of facing an unfavourable judgment and being ordered to pay compensation, there are reputational issues to consider. Final hearings, and preliminary hearings in which key preliminary issues will be determined, will be held in public. High profile cases involving well-known brands and businesses will undoubtedly attract media attention. Take steps to prepare for and manage potentially damaging PR and press coverage in the event of an unfavourable outcome.
Please contact Sam Murray-Hinde or Lydia Christie if you would like to discuss how we can support and help you to manage Employment Tribunal claims.