In this edition of Joelson’s Employment Tribunal Tactics and Tips series, we look at the options for employers upon receiving an ET1 claim form.
What options are available to employers once the ET1 claim form has been received?
Following receipt of an ET1, employment tribunal claim form as well as seeking advice on the merits and possible value of the claim, the employer should also review any early conciliation certificate (which is usually sent by the tribunal with the ET1) to:
If any of the above are incorrect this may allow the employer to challenge whether the claim was validly issued by the employment tribunal in the first place.
If there are not any such errors the employer’s ET3 response (defence) form will need to be lodged within 28 days. In such circumstances as well as preparing its response, the employer should also consider other ways to try and deter the employee from continuing to pursue the claim.
Options available include:
Although arguing that a claim includes insufficient detail might at first glance seem an attractive way of challenging a claim, employers must also be mindful that this might tip off the employee to correct any drafting errors either voluntarily or by the employment tribunal making an order for further and better particulars of the claim. This could be harmful to the employer especially as the employee may try and insert fresh claims and allegations by way of clarification.
In practice, whilst employers do make applications for strike out, these are seldom granted by the employment tribunal due to the high threshold that must be met. Instead, employers are more likely to be able to persuade a judge that it would be appropriate to grant a deposit order in respect of those parts (or all) of the employee’s claim that has little or no prospect of success. Deposit orders require employees to pay a sum of money to the employment tribunal in order for the claim to progress. In the event that the employee fails to comply with a deposit order, the claim or the specific part of the claim to which the deposit order relates will be struck out by the employment tribunal.
As well as using preliminary hearings to deal with the above applications, it is also a helpful time for the parties to clarify and narrow down the issues in the case.
Even where the employee is refusing to be helpful in agreeing a list of issues to be determined by the employment tribunal, the employer should still attempt to draft such a list to assist the tribunal. Sometimes employees will try to delay agreeing such a list to try and keep their options open to the final hearing. This should be resisted by employers by it drafting a list of issues based solely on the issues raised by the employee in their original ET1.
If the nature of the allegations are particularly sensitive or have the potential to cause damage to the company’s reputation, employers should consider applying for a restricted reporting order (RRO).
The employment tribunal can make an RRO where it is considered necessary in the interests of justice, or to protect the rights of any person under the European Convention on Human Rights (usually on the basis of the right to family and private life). RROs are particularly helpful where one of the main goals of the employee seems to be to cause their employer damage to their reputation – especially where the allegations relate to discrimination or sexual misconduct.
This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.
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