YOU have dismissed an employee.
Beforehand you took advice and
believe you took all the correct steps,
but a set of forms from the
Employment
Tribunal lands on
your desk saying the
dismissed employee
is claiming that you
dismissed him or her
unfairly. What should
you do? What will it
cost you?
This is an
increasingly common
experience for
employers as the
number of
Employment Tribunal
claims is increasing
dramatically. The
Tribunal Annual Statistics for 2009/10
show that from 2008/09 there was a
56% increase in the number of claims
to the Employment Tribunals. The massive increase is due in part to
multiple claims but nonetheless there
has been a 14% increase in single claims.
There has also been a
17% increase in claims
for unfair dismissal,
breach of contract and
redundancy.
For employees it is
quite simple to bring a
claim. The
Employment Tribunal
has a website.
Employees can
complete online a
claim form and they
do not have to pay a
fee. For the employee
the tribunal is just one
click away.
The steps to take
When an employer receives a tribunal
claim it should be dealt with
immediately. A senior person should
deal with the matter as the business’s reputation and money is at stake.
It may also be necessary to make a
point to other employees who may be considering bringing claims.
Time limits
Claims should be dealt with immediately
as the employer has to meet a strict time
limit of 28 days to respond to the
tribunal. The 28 days runs from the date
the forms are despatched by the tribunal
and therefore a number of days may
already have passed before you receive
the claim.
The forms from the tribunal will
state the date when the tribunal must
receive the response. A failure to meet
the deadline means that you present the
employee with an open goal as you will
not be entitled to take any further part
in proceedings and a default judgement
in favour of the employee will normally
be issued.
You can apply for an extension of
time to lodge the response but the
application for an extension has to be
made within the 28 days and you must
satisfy the Employment Tribunal that it
will be just and equitable to grant the
extension.
There is a practical point you need
to be aware of and that is a claim form may have been sent to
the registered office
which may have a
different address from
your business address.
You should therefore
ensure that you regularly
check the post sent to
the registered office.
The forms
You will receive from
the tribunal the claim
form ET1, notification
of the claim including
the date you must
respond and the case
number, which must always be quoted
in correspondence with the tribunal, and
form ET3 which is the form you must
complete and return to the tribunal
setting out your response to the claim.
Before completing the response
form ET3, you should check carefully
the details the employee has put on the
ET1, including the place of
employment, dates of employment and
details of pay and other benefits. This is
important because, for example, you
may disagree with the dates and
therefore have a case that the claim has
been brought out of time or that the employee has not been employed
sufficiently long to be able to bring a
claim. To bring a claim for unfair
dismissal an employee has to be
employed for at least a year.
The next step should be to gather
together the papers and documents
relating to the claim. Normally these will
be on the employee’s personnel file but
you should check that the file is up to
date and that any documents generated
by managers, such as records of verbal
warnings or e-mails, memos or notices
put on notice boards are on the file.
It is also important to ensure that all
contracts of employment and memos or
letters varying the contractual terms are
on the file as well.
You should also speak to any
managers or employees referred to in
the tribunal claim and obtain their
responses to any points concerning
them.
You will then need to decide
whether to write the tribunal response,
form ET3, yourself or instruct
solicitors. You should also check
whether you have the benefits of any
legal fees insurance.
A well-pleaded response prepared
by your solicitors will be a sound
investment and help to make a solid foundation for your
case. Alternatively, it
may be that the legal
advice will be that you
do not have a good
case and should
therefore concentrate
on trying to settle the
case at an early stage in
order to save costs and
adverse publicity.
Sometimes it is
possible to settle a case
even before the 28-day
time limit for
responding to the
tribunal. If you decide to send the ET3 to the tribunal yourself,
you must make sure you send it to the
correct tribunal office, quoting the case
number and taking into account any
delays in posting, if you decide to post
the response.
Remember that the 28-day time limit
applies to the date the tribunal receives
your response and not when it is posted.
For this reason it is preferable to e-mail the response, but whatever means you
use, you should phone the tribunal
before the deadline to make sure it has
received your form ET3.
Directions and orders
Once your response is received the
tribunal will normally issue a set of
directions and orders. These set out a
timetable which must be kept to. As
part of the directions there will
normally be a provision that each side
prepares a list of documents relevant to
its case and then agrees a common
bundle of documents which is
numbered. Preparation and agreement
of this bundle is an important stage as
often documents can help significantly
in proving a party’s case.
You will need to comply properly
with these directions and orders as
failure to comply can eventually lead to
your response being struck out and/or
to an order that you pay costs.
The tribunal will often arrange a
“case management discussion” in order
to clarify the issues and the orders to be
made in a case. It is prudent for the
employer to be represented at this
discussion particularly where issues are
to be clarified, or orders to be made,
relating to more complex issues such as
medical evidence. Failure to clarify
issues correctly can seriously undermine
your case.
In other cases, a pre-hearing review
can be held in order to decide a
particular point such as whether an
employee is disabled or whether the
claimant is an employee and not self-
employed.
Such points can be fundamental to a
case and a decision following a relatively
brief hearing may mean that the whole
case or part of it will not be able to
proceed further. As the result of a pre-
hearing review can have a decisive
outcome, it is worth investing in
representation at it.
The tribunal will fix the dates of
hearings. It is up to you to ensure that
you and your witnesses can attend on
the date fixed. If the date is
inconvenient you must tell the tribunal
at once.
Hearings
As part of the tribunal’s directions, each
side will be ordered to prepare and
exchange written statements from their
witnesses a few weeks before the
hearing. The statements should contain
the case of each party and refer to the
particular documents in the agreed
bundle as evidence of any particular
point.
At the tribunal the statements may
be read by the witnesses or taken as
read. In this way, evidence is not a test
of memory and rarely, if ever, would
one party be able to ambush the other
with last minute evidence. Witnesses,
however, are then cross examined by the other side and the tribunal members
may also ask questions.
As written statements form such an
important part of the evidence, it is
advisable that they are prepared
properly to ensure they are clear, to the
point and refer to all the relevant
evidence. Failure to include relevant
evidence in a statement may mean that
it cannot be included later on.
Costs
The normal rule in litigation is that the
loser pays the winner’s costs. However,
in Employment Tribunals each side
normally pays their own costs whether
they win or lose. The tribunal can order
one side to pay the other side’s costs
where a claim or defence has no merits
or where one side conducts the
proceedings unreasonably, including
failing to comply with tribunal orders
and directions.
However, costs orders are made in
only a small minority of cases.
Employers often therefore need to take
advice to assess the merits of the case
and decide whether it is commercially
sensible to settle the case early in order
to avoid the legal costs that can form a
significant part of the amount in dispute.
The original intention of the
tribunal system was to create a relatively
informal venue to hear employment
disputes at which parties could
represent themselves. Parties can still
represent themselves, but over the years
the tribunal system has become more
formal and complex.
Tribunals can also now award
substantial sums. The maximum
compensatory award for unfair dismissal
is capped at £65,300 but for a number
of claims, particularly discrimination
claims, there is no cap and six figure
sums can be awarded.
As a result employers are strongly
advised to take legal advice at an early
stage in employment disputes and
certainly as soon as they receive an
Employment Tribunal claim. But there
is much employers can do now to
strengthen their position for any
potential dispute, including having clear
and up to date policies and procedures,
up to date contracts of employment and
comprehensive HR records.
IN BRIEF:
Pyrrhic victory for employee ‘unfairly dismissed’
In Nicolson Highlandwear Ltd v.
Nicolson, the EAT (employment
appeals tribunal) overturned the
decision of an ET (employment
tribunal) not to award costs against an
employee who had been automatically
unfairly dismissed, but who had wholly
contributed to his dismissal due to the “prima facie fraudulent intromissions with
the respondent company’s business”.
Mr Nicolson was summarily
dismissed when his employer found that
he had been running his own business
out of the employer’s premises,
defrauding the employer’s business
through false accounting and poaching
its customers.
An ET held that his claim for unfair
dismissal was successful. This was due
to the fact that the employer had not
followed the statutory procedure, then
in force, which meant that his dismissal
was automatically unfair. The ET
however, did not award Mr Nicholson
any compensation on the basis that the
dismissal was 100% attributable to his
own conduct.
Mr Nicolson’s employer applied for
costs on the basis of his unreasonable
behaviour in bringing the claim. The ET
refused, citing that Mr Nicolson had not
lied to the tribunal (despite defrauding
his employer), that he had succeeded in
showing that the dismissal was unfair
and he was entitled to seek a declaration
of unfair dismissal without the objective
of compensation.
The EAT overturned this decision,
granting an award of costs to Mr
Nicholson’s employer because Mr
Nicolson brought a claim knowing he
had acted dishonestly and his conduct
was wholly attributable to his dismissal.
Equality Act update: withdrawing health questionnaires
From this month, employers, prior to
making an offer of employment or
short-listing, will no longer be able to
ask questions on whether potential
employees are sufficiently healthy to
work for them.
This will mean that job applicants
can no longer be required to declare
medical issues during the recruitment
and short-listing stages, unless it is
related to the identification of special
facilities required to conduct
interviews, selection tests or, if
necessary, to check that a candidate can
perform an “intrinsic function” of the
job.
The provisions are to be introduced
as a means to remove the possibility of
employers discriminating against
prospective employees with disabilities
or a long history of illness, who are
likely to be put off for applying for a
job because of their disposition.
If they do not comply with the
new regulations, employers could be
faced with an investigation by the
Equality and Human Rights
Commission and an employer will be
assumed to have discriminated, unless
it can show there was another reason
for non-selection.
