This week, my colleague Susie represented the claimant at a mock-tribunal for a local CIPD group. Despite the fact that the respondent was represented by a very competent and experienced advocate, Susie won. So this week, I thought today I would write about responding to a tribunal claim, the ET1.
When a claimant makes a complaint to the employment tribunal, you will be sent a copy of the ET1 and asked to respond with your defence. The form on which you will submit the defence is called the ET3. Make sure you include your full name and address, whether or not you intend to resist the claim in whole or in part and, if you do, specifying the grounds for it. Give a full account of your version of events.
You’re telling a story, so make sure that it is complete, in logical order and includes all the relevant details. Take time to do it properly. You have 28 days from receipt of the ET1. The 28-day time limit runs from the date on the tribunal’s letter sending the ET1. If you do not return the response within the time limit, you will not be able to take any further part in the proceedings and the tribunal will usually issue a default judgment against you.
Sometimes the information contained on the ET1 is rather sparse. Where the claimant has not provided sufficient information about his claim, you can ask him to provide additional details. For example, if the claimant alleges discrimination, but gives no examples of when the alleged discriminatory acts occurred you can write to him requesting further and better particulars. If the claimant does not respond, or the response is inadequate you can ask the tribunal to order him to provide the information.
When you respond to an ET1, consider the following:
- Are the details contained at the beginning of the ET1 correct?
- Has the employee got sufficient service to bring the claim?
- Has he submitted the claim in time?
- Has he got standing? For example, only an employee can claim unfair dismissal. If the individual was an agency worker, you would probably argue that he does not have the right to complain of unfair dismissal.
Set out the grounds on which you intend defend the case. Generally, you should address all allegations made by the claimant in the ET3. Make sure that any factual statements contained in your ET3 are consistent with any documents that may be used in evidence at the trial, for example, policies and procedures, correspondence relating to a dismissal, disciplinary sanctions etc.
You may wish to argue more than one defence to take account of the fact that the tribunal may find against part of your argument. For example, where a claimant has argued that his redundancy is an unfair dismissal, you might say that the redundancy was the real reason for the termination of employment and this is a fair reason for dismissal; or, if the tribunal finds that it was not a redundancy situation, that the employee was fairly dismissed for some other substantial reason (SOSR),such as the requirement for a restructure. The ET3 can be completed online and submitted electronically.
If you post or fax the form, remember that it must arrive at the tribunal within 28 days. Only submit it once (otherwise you may find that two folders have been set up which leads to enormous confusion) and once sent always check with the tribunal to ensure that the ET3 has been safely received. In some cases the claimant names an individual as a respondent in addition to the organisation. This often happens in discrimination cases, for example, Johnson v (1) Armitage; (2) Marsden; (3) the Prison Service, where the alleged perpetrator of the discrimination is often named as a separate respondent.Where this is the case, you must decide whether or not to assist the individual respondent by helping him to draft a response.
In some situations it may be appropriate to do so, but not always. Where there is a possible conflict of interest, you may prefer to leave the alleged discriminator to submit his own defence. The ET3 is an important document and pivotal to defending a claim.
Take time to get it right and take advice if necessary.
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