Preparing for an Employment Tribunal: Employer's Guide

Receiving a tribunal claim is stressful. Proper preparation gives you the best chance of defending successfully.

When a Claim Is Made

What You'll Receive

ET1 Form (Claim):

• Claimant's details
• Type(s) of claim
• Facts they're relying on
• Remedy sought

Immediate Steps

1. Don't panic - Many claims are defensible or settleable
2. Preserve documents - Stop any document destruction
3. Notify insurers - If you have legal expenses insurance
4. Seek legal advice - Even initial advice helps
5. Meet the deadline - 28 days to respond

Responding to the Claim

The ET3 (Response)

You must file a response within 28 days, including:

• Your name and address
• Whether you resist the claim
• Your grounds for resistance
• The facts you rely on

Key Points

• Be specific in your response
• Address all allegations
• Include your version of events
• Mention key documents and witnesses
• Don't admit what you're not sure about

If You Miss the Deadline

• Claim may proceed without your input
• You can apply for extension (but need good reason)
• Much harder to defend if response rejected

Building Your Case

Gather Documents

Collect everything relevant:

• Employment contract
• Handbook and policies
• Correspondence (letters, emails)
• Meeting notes
• Performance records
• Disciplinary/grievance records
• Contemporaneous notes
• Payslips and pay records

Document Timeline

Create chronological timeline:

• Key dates
• What happened
• Who was involved
• What documents exist

Identify Witnesses

Consider who can:

• Speak to relevant facts
• Support your version of events
• Withstand cross-examination

The Tribunal Process

Case Management

Preliminary Hearing: May be held to:

• Clarify claims and issues
• Set timetable
• Order disclosure
• Deal with preliminary issues

Directions: Tribunal will order:

• Disclosure of documents
• Exchange of witness statements
• Preparation of bundle
• Listing for hearing

Disclosure

What to disclose:

• All documents relevant to the issues
• Helpful and unhelpful documents
• Internal correspondence
• Electronic documents

Disclosure obligations:

• Must search for documents
• Must preserve documents
• Failure can damage your case

The Bundle

Joint paginated bundle containing:

• Claim form (ET1)
• Response (ET3)
• Relevant documents
• Usually agreed between parties

Typically:

• Chronologically ordered
• Paginated
• Index included
• Multiple copies for hearing

Witness Statements

Must include:

• Full name and role
• Chronological account
• Reference to bundle pages
• Must be in witness's own words
• Signed and dated

Tips:

• Be comprehensive but relevant
• Address all key issues
• Avoid arguments (save for submissions)
• Reference documents

Preparing for the Hearing

Know Your Case

• Read all documents thoroughly
• Understand the legal issues
• Know timeline inside out
• Anticipate weaknesses

Prepare Witnesses

• Meet with each witness
• Review their statement
• Practice likely questions
• Explain the process
• Don't coach (but can prepare)

Practical Preparation

• Know hearing location
• Arrive early
• Bring multiple copies of bundle
• Bring original documents
• Have contact numbers

The Hearing

The Room

Typically:

• Judge (Employment Judge)
• Possibly two lay members
• Claimant (and representative)
• Respondent (and representative)
• Witnesses wait outside until called

The Process

1. Opening:

• Judge outlines issues
• May be opening submissions

2. Claimant's Case:

• Claimant's witnesses give evidence
• Cross-examination by respondent
• Re-examination by claimant

3. Respondent's Case:

• Respondent's witnesses give evidence
• Cross-examination by claimant
• Re-examination by respondent

4. Closing Submissions:

• Usually respondent first
• Then claimant (bears burden of proof)

5. Reserved or Given:

• Judgment may be given immediately
• Or reserved (written later)

Giving Evidence

Your witnesses should:

• Tell the truth
• Listen to questions carefully
• Answer the question asked
• Refer to documents when relevant
• Stay calm under cross-examination
• Say "I don't know" if they don't

Avoid:

• Arguing with the questioner
• Volunteering extra information
• Guessing
• Getting angry
• Evasiveness

Cross-Examination

Purpose:

• Challenge the other side's evidence
• Put your case to their witnesses
• Highlight inconsistencies

Technique:

• Use closed questions
• Focus on key issues
• Reference documents
• Be professional (not aggressive)

Settlement

When to Consider

• Before proceedings (saves costs)
• After disclosure (when know strength of case)
• At hearing door (common)
• Part-heard (judge may encourage)

Settlement Negotiations

Without prejudice: Discussions can't be referred to in tribunal.

ACAS: May help broker settlement.

Advantages:

• Certainty of outcome
• Avoid management time
• Confidentiality possible
• Move on

Recording Settlement

If settling:

• Usually through COT3 (ACAS form)
• Or settlement agreement
• Ensure terms are clear
• Get everything agreed in writing

Costs

General Rule

Each party pays their own costs. Loser doesn't usually pay winner's costs.

When Costs May Be Awarded

Costs orders possible if:

• Party acted vexatiously or unreasonably
• Claim/response had no reasonable prospect
• Hearing caused by unreasonable conduct

Costs Protection

Limited exposure to costs is advantage of tribunal system.

But don't rely on it - unreasonable conduct can lead to costs.

After the Hearing

The Judgment

Reserved judgment:

• Sent in writing later
• Includes reasons

Oral judgment:

• Given at hearing
• Can request written reasons within 14 days

If You Lose

Options:

• Accept the judgment
• Pay the compensation
• Consider appeal (limited grounds)
• Apply for reconsideration (limited circumstances)

Appeals

Can appeal to Employment Appeal Tribunal (EAT) on:

• Point of law only
• Not just because you disagree with facts
• Within 42 days of written reasons

Practical Tips

Do

• Prepare thoroughly
• Be professional and respectful
• Answer questions directly
• Have documents organised
• Listen to the judge
• Take notes

Don't

• Exaggerate or minimise
• Get emotional
• Argue with the judge
• Interrupt
• Bring irrelevant material
• Underestimate the claimant

Checklist

Initial Response

• Preserve all documents
• Notify insurers
• Seek legal advice
• Gather initial documents
• File ET3 within 28 days

Case Preparation

• Collect all relevant documents
• Create timeline
• Identify witnesses
• Complete disclosure
• Prepare bundle
• Draft witness statements

Before Hearing

• Review all documents
• Prepare witnesses
• Know the key issues
• Consider settlement
• Practical preparation (location, copies)

At Hearing

• Arrive early
• Bring everything needed
• Be professional
• Listen carefully
• Give clear evidence
• Make effective submissions