Many employers will have experienced a sinking feeling when they have seen, landing on their desk, an employment tribunal (ET) claim form. If you have not been in that position then you are either very well managed or very lucky or both.
Clearly, a school that is well managed and compliant with proper industry and human resources practices is less likely to fall foul of employment law. But employment law is complicated, and even employers with the best intentions can and still do get it wrong. Further, of course plenty of claims that are issued against employers are without merit and are issued despite the fact that the employer has acted lawfully and has done all that is reasonable in the circumstances.
It is difficult to argue that receiving such claims is in any way good news for an employer, but handled properly, they need not be quite as troublesome as they might first appear. This article looks at what you should do if you are the one who receives the claim form.
Opening the envelope
You must read carefully what the ET sends you. There will be at least two forms in the envelope - the ET1 (the claim form) and the ET3, which will be a blank defence form. There will also be a clear statement of the date that you have to file the completed defence. This should be 28 days. If you think that you will not be able to get a defence in by the deadline, then you must immediately apply for an extension of time, and ensure you get it agreed before the date expires.
If you do not get your defence in by the deadline, you may well be debarred from defending the case, which might prove expensive.
In house or 'out house'
You will need to decide, in particular, whether you going to handle this claim yourself or pass it to external advisors. Clearly, in most cases there is going to be a cost implication of passing it to external advisors but the important thing here is, do not delay.
Solicitors' firms can handle most things thrown at them by an ET but cannot turn back the clock. Therefore if you are going to instruct externally you should do so as soon as possible. This type of decision is often taken by a school's head teacher, as you are unlikely to have time to await the next governing body meeting.
Should I settle?
One of the most difficult decisions for employers defending ETs is whether, and if so when, to settle the case. Often, employees will settle their claim for less than the school would be charged to deal with it. On the other hand, some schools take the view that if they settle an unmeritorious claim without a fight they are merely encouraging litigation in the future, and so it is a false saving.
Each school needs to chart its own course here. But, the most important thing is to make the decision early. External advisors usually incur costs in chunks. There will be a chunk of cost when the defence is filed and first advice is given. There may then be a quieter time until documents are disclosed and witness statements are taken.
If a school is going to settle a case on a commercial basis, it makes sense to do so before the next chunk of costs is incurred.
The worst thing for a school is to discover after expending, say, £15,000 on an ET case that the employee would have settled in week two for £3,000. The external advisor should encourage you to consider such matters, and if it does not then the school should consider them anyway.
The school needs to decide who in the organisation is going to liaise with the external advisors. That person is likely to be a member of the senior leadership team, human resources team, or possibly a governor if the claim relates to the head teacher. Any person instructing external advisors should ensure that they have the appropriate authority from their governing body or a delegated committee of it.
Who's in charge?
In particular, decisions as to financial settlement are particularly sensitive. Schools may wish to pass a resolution at a full governing body meeting that a delegated committee has the power to settle up to a certain amount and then let that delegated committee or person simply get on with managing
Early on, your external advisor should ask you for any relevant documents. The process of document collation and production to the other side is called ‘disclosure' and is very important.
Employers have an obligation to produce to the court all relevant documents relevant, even where these damage the employer's interests.
This does not apply to documents that may be privileged, for example advice between lawyer and client. So the employer should do a thorough search for all relevant documents and pass them to the external advisor. The external advisor will then review these against the issues in the case and disclose to the other side what is relevant. These documents are then likely to form the basis of a hearing bundle, if the case gets that far.
The school may receive documents from the employee or their legal advisors but these are usually limited.
The ET may list the case for a pre-hearing. This might happen where there is a disability claim and the employer does not admit that the employee is disabled. Usually the tribunal will list the case for a pre-hearing on that point.
The ET might also decide that the employee's case is weak or without merit and list the case for a pre-hearing review at which the case may be struck out or the claimant asked to pay a deposit as a precondition for continuing with the claim.
The ET might also list the case for a case management discussion at which the ET will attempt to identify the issues and give any particular directions for the proper management of the claim.
The ET must act in accordance with its statutory ‘overriding objectives', which include the principle of proportionality. This means that the steps taken in the case, and the length of time allotted to perform certain tasks, must be proportionate to the importance of the issues and the value of them.
Sometimes a claim is unclear. If so, the employer can ask for further information - this is called ‘a request for further and better particulars'. For example, a claim may allege harassment over a period of time but not say who is the alleged harasser. The employer might ask: Who was the alleged harasser?
On what dates did the alleged harassment occur? Who might have witnessed it? This would make the allegations clear and give the employer points to investigate as they take statements from witnesses.
Employers or parties may also ask for specific documents if such documents have not been disclosed in the general disclosure process - and parties may also, in some circumstances, ask specific questions that might narrow issues at the full hearing.
Which witnesses to call
It is important to identify which witnesses should give evidence. This sometimes is not as easy as
ETs usually want to hear from the decision-makers. This will usually include the dismissing officer and any appeal officer. That said, sometimes it is relevant to call an investigating officer, although in the final instance it is not the investigating officer's decision that needs to be judged in the context of an unfair dismissal case.
Where a dismissal has been by a panel, rather than call the entire panel, one option is to produce a full statement from the chair of the panel, and supporting statements from the wing members. It may then be possible to agree the statements of the wing members without requiring their presence at the ET.
In discrimination cases it will usually be necessary to call those who are alleged to be the discriminators and any witnesses to the alleged discrimination. If there has been a grievance process in relation to the discrimination, then it may be necessary to call the decision-maker in that process. This is particularly the case if the complainant alleges that the grievance was conducted in such a way that it was itself an extension of the discrimination.
In nearly all full hearings employment tribunals expect evidence to be given by witness statement. Until recently, tribunal practices have varied and some tribunals have required witnesses to read out their witness statements whereas other tribunals have allowed those statements to be ‘taken as read’.
If the statements are taken as read, the tribunal reads the statement to itself and the opening questions are usually in cross examination by the opposing advocate. This latter practice of having statements taken as read is increasingly becoming the norm, and witnesses should expect this in the future.
Preparation is crucial
So, witness statements are read by the tribunal before the witness says a word, and it is critical to the success of a case that proper time and attention be given to their preparation. Witness statements should be forensically drafted against the issues in the claim, the facts that the employer wants in front of the tribunal and the evidence available to prove those facts. The statements should
be clearly structured, usually chronologically, and cross-referenced to the hearing bundle.
Employment tribunals tend to be unsympathetic in relation to material inaccuracies in witness statements, although they tend to be sympathetic towards minor typographical and similar errors. Employment tribunals take the view that witnesses have plenty of time to draft the statements, and have the option of doing so with legal advice and so they should get them right.
Importance of employer’s evidence
Employment tribunals tend to prefer to find against parties on their own evidence rather than finding against them on the other party’s evidence. This saves them calling a witness unreliable or even a liar. That means if there is something in an employer’s statement that is damaging to the employer’s interests then it is much more persuasive than anything that may be said by an opposing witness. It cannot be over-emphasised how important the witness statement process is.
Employment tribunals have a reasonable discretion as to how to run the hearing but there are fairly common practices.
In a dismissal case where the dismissal is admitted, the employer's side usually gives evidence first. Where the dismissal is not admitted (for example, a constructive dismissal), the employee's side usually goes first. In a discrimination case the employee's side usually goes first.
Assuming a standard unfair dismissal case where the dismissal is admitted, the following is fairly standard procedure:
- employment judge's introductions and any administrative matters regarding bundles
- employer presents first statement
- employee cross-examines first witness
- above process repeated for all witnesses
- closing submissions by employee and employer
You can never guarantee that you will win your case. But there are steps you can take in preparation, in particular in relation to the preparation of the witness statements, that can seriously increase those chances.
Sometimes employers do get it wrong, and sometimes they get it right but ETs make the wrong decision. But if you as the employer have followed good employment relations practice, and focus on the issues in the case, then you increase your chances of walking away without a judgment against you. This is likely to save your money, and retain your reputation.
Peter Woodhouse is a solicitor and barrister with 20 years' experience of employment tribunals, and has trained advocates for the National Institute of Trial Advocacy . You can contact him at firstname.lastname@example.org
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