June 8, 2023
We know that things can go wrong at work and disputes arise. Here at Law 365, while our mission is to help our clients grow a happier, more productive work culture, we sometimes have to step in to assist our clients in mounting a defence for a Tribunal claim.
- Do you feel your boss didn’t pay you the correct holiday pay to which you were entitled?
- Perhaps a member of your team was dismissed for under-performing, which they argue was unfair?
- Did an employee say you discriminated against them because of their disability?
Whatever the claim, employees have recourse through the judicial body called the Employment Tribunal. Whether you’re bringing or defending a claim, there is always a lot of drafting and hard work that is involved in preparing for your day in court.
One of the best weapons at our clients’ disposal is our senior associate, Harriet Hutchinson. Harriet has taken the lead on several cases, and today I got the chance to interview her to learn about the process.
So please read on if you’d like to walk in her shoes a while, and find out what it takes to be an employment solicitor in the heat of litigation.
Hi, Harriet. Let’s start with a brief introduction. What’s your background and why did you become a solicitor?
I actually did a history degree before law as I wasn’t sure what I wanted to do.
After doing various work experience stints, I decided that I really enjoyed the intellectual challenge of law as well as the practical application of it to our lives in so many areas.
What made you choose employment law?
Personally I’ve always found it one of the most interesting areas of law (although I would say that wouldn’t I!) because its all about people and relevant to day-to-day life.
You can take the same set of circumstances but likely the outcome will be different each time because people are complex and react differently. I also like that you get a good balance of contentious and non-contentious work in employment law.
Had you worked on many tribunal cases before joining Law 365?
Yes, I’ve worked on a fair few tribunal cases before joining Law365, acting for both employers and employees on a number of areas – fromage discrimination to whistleblowing to unfair dismissal to director/shareholder disputes.
Having acted on both sides of the fence is great as it helps to give clear, balanced and objective advice.
How did you come to work at Law 365?
I saw an advert in the Law Society Gazette and was immediately drawn to it as it sounded like a really great firm with a positive culture and quality work.
This was cemented when I met Kim and Megan and I really bought into their passion for the firm and the work.
Are you enjoying working for Law 365?
I am, yes! I’ve been involved in lots of really different interesting employment matters since joining, which has been really great.
I also love working with the employment team as well as getting to work with everyone else across the firm.
Can you talk us through the process of defending a tribunal claim? When do clients normally engage you?
The first stage in defending a claim is drafting the response (called an ET3). So the ET3 itself is a prescribed form that must be completed.
This sets out the parties names and key facts, such as dates of employment. There is then a section where you set out the defence or response to the claim. Most commonly, particularly where solicitors are involved, we tend to draft a separate document called the Grounds of Resistance which gets attached to the ET3.
So it really varies when a client gets in touch. Some might instruct us when they get served with the claim form (called an ET1) and others might instruct us later on in the process.
What should go into an ET3 and Grounds of Resistance?
The ET3 is a key document that sets out the employer’s case. First point to address: are you going to defend the claim, yes or no? If you are intending to defend it, you set out the Grounds of Resistance; how you intend to defend yourself.
You must respond to each allegation in sufficient detail to show why the employer has reasonable prospects in defending the claim. There needs to be enough information and detail to show how the employer views the facts and matters that led to the claim.
It’s important that any explanations and documents are consistent as these will have to be disclosed. Another reason why it’s so important to put together a strong defence at the beginning is because, once the ET3 is filed, there’s a good window of opportunity to try and settle the claim early on (if that’s what the client wants to do). You therefore want to present the best possible case to strengthen your negotiating position.
How long do you have to prepare?
Only 28 days! Which is a relatively short period of time to pull all the relevant information together.
What happens after submitting the ET3?
The Tribunal may list the claim for a preliminary hearing before going to a full trial. The preliminary hearing is usually an administrative hearing where the Tribunal will outline what’s needed to prepare the case for final hearing, such as the key factual and legal issues in dispute.
As I mentioned, while a claim can be settled at any point, a key point for settlement to be seriously considered is after submission, because it is before the parties have become too entrenched in their positions or have incurred too many costs.
What preparation might you have to do for hearings?
For a preliminary hearing, there can be a surprising amount of preparation needed.
We will need to complete (and try and agree with the other side!) a case management agenda. The case management agenda is a document which sets out issues to be discussed at the preliminary hearing and will enable a Judge to determine the timetable for a full hearing.
We also need to prepare a list of all the issues in dispute which will need to be decided at the full hearing. This is very important to get right, because once the list of issues are agreed at the preliminary hearing, it then becomes difficult to introduce a new issue or alternative ground of defence.
Finally, as the employer, you will be responsible for preparing the bundle. This is essentially gathering all the key legal documents in the claim so that a judge can get an overview of the facts and proceedings to date.
Once the documents are all in place, I then need to prepare for any oral arguments that might be heard on the day. This will often involve reviewing the relevant rules of procedure, legislation as well as looking up previous cases (at Law 365 we don’t use ChatGPT for this!) on similar aspects.
The preparation for a full hearing is a whole other kettle of fish, that I can explain another time.
What is the most time-consuming job for you in the process?
Probably drafting the ET3 and also the disclosure stage.
The ET3 because as I mentioned, it’s really important that we have a full and accurate understanding of all the relevant background and information to put the best possible defence forward.
The disclosure stage because that involves reviewing ALL documents (emails, documents, correspondence, notes, Teams messages, etc) from the around the time of the allegations to identify if they are relevant to the case. Depending on the claim, this can be a mammoth task. I once was involved in the defence of a claim where we had 5 lever arch files of emails alone to sift through!
What are your biggest concerns as you go along?
It’s essential that we keep reviewing the strategy with the client so we can predict or stay ahead of any changes. We particularly need to be alert to any documents that might come out of the woodwork which are adverse to the case but which must be disclosed.
I think it’s also important to keep in mind whether a commercial settlement is realistic or possible.
What frustrates you most?
The length of time it can take a matter to reach a full hearing. The tribunals already had a significant backlog prior to Covid 19 and unfortunately the pandemic has made it worse.
It can therefore take a long time to get a response from the Tribunal. It’s not unheard of for cases to be listed for 18 or even 24 months time.
How are your clients throughout the process? Are they nervous? Anxious? Are tensions high?
It often depends on the nature of the claim being brought against them as well as the individual personalities of the client. If spurious allegations are being brought against an employer, then perhaps tensions may run a little higher because they’ll be more determined to defend the matter. Generally we find that the longer a tribunal goes on, the more likely both sides are to become entrenched in their positions.
When it comes to the actual hearing, I think most people tend to have a mix of emotions, particularly if they are going to be required to give evidence as this can be quite a daunting process. It can also be quite nerve wracking ahead of any decision by the Tribunal because there will always be litigation risk – i.e. the unpredictability of human behaviour and the interpretation of evidence by the tribunal itself.
Are there any points that you enjoy throughout the claim?
I really enjoy the interaction with the client. In order for me to get to know the documents and background really well, it’s important to have a good relationship with the client.
I also oddly enjoy the drafting of a claim or a defence as it can be both an intellectual and creative challenge. I like finding ways to be creative (not with the truth, of course) but to structure the best case possible.
What happens on the day of the tribunal?
These days preliminary hearings tend to be conducted online via a video platform. You will get instructions on how to join ahead of the hearing. On the day, it will be just you, the claimant and/or their representative and the judge.
However, some preliminary hearings (for example if there are several important issues to be dealt with) as well as full hearings take place in person. In that case you arrive at the tribunal in the morning usually for a 10am start. (I always advise getting there early as there can be quite a queue to go through security and you never want to be late before the Judge!)
We tend to do the advocacy ourselves at preliminary hearings but for a full hearing (or if there is a substantive point of law to be argued at a preliminary hearing), we may instruct a barrister to carry out the advocacy as they are in and out of tribunals on a daily basis and are experts.
You then sit in the respective claimant or respondent waiting room until you are called in by the Judge.If we have instructed a barrister this is where we will meet them.
Often, particularly before a full hearing, the parties will try to a final time to settle the claim before going into the hearing. In such cases there might be a lot of backwards and forwards between the claimant and respondents waiting room to negotiate and iron out a commercial settlement.
There can also be a lot of waiting around at tribunals. They will tend to list several cases at one time, so you won’t know when you’ll be next.
The hearing room itself is quite deliberately underwhelming. It’s sadly not a court room like the ones you see on tv. This is because tribunals were originally designed for people to be able to represent themselves (without the need for lawyers) so they’re in what look like large classrooms with a desk at the front for the Judge, a desk for the claimant and respondent representatives and then rows of chairs for witnesses or members of the public.
At a preliminary hearing there will only be one Judge. However, at a full hearing, depending on the case (for example, a discrimination claim) there will be a panel of 3 people hearing the claim – a judge and then a representative from an employer background and a representative from an employee (e.g. a union representative) background.
If you had to give 3 top tips for clients who might be facing a claim, what would they be?
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Seek advice at an early stage
A tribunal claim can be complex and it’s important to get your ducks in a row early to avoid costly repercussions down the line. Your lawyers can assess the merits of the claim and defence and can advise on the most appropriate strategy to seek to bring an early resolution to the claim and/or mange the process for you so you can continue running your business.
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Be prepared
Most cases are won or lost on the evidence available and you can’t pick and choose what you disclose. It’s therefore imperative to gather the relevant documents at the beginning so you can put forward a defence that is consistent with the contemporaneous documents. It is never ideal if you have to change your defence because a “smoking gun” document presents itself later.
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Don’t underestimate the impact on you personally and professionally
If you engage solicitors to handle the claim for you, we will do our utmost to guide you through the process and remove the stress from you. That said, aside from legal costs (which are most of the time unrecoverable), a tribunal claim will still require a fair amount of management time and input from your team. For example, there will be time spent taking witnesses statements and time spent at a full hearing. Additionally, being involved in a tribunal process can be a stressful experience for employee witnesses. I would also flag that tribunals are a public process so there are also potential reputational issues to think about too. Whilst some employers think they may want their “day in court” to defend allegations, in reality the impact and disruption to your business can be significant even when you win.