Firstly: don’t panic. Whether expected or not, it is always worth remembering that a systematic approach to responding to a claim is more effective than an emotive one. No knee-jerk reactions required.
Fortunately the days of receiving an ET1 Claim form with little or no warning are largely gone. The introduction of the ACAS Early Conciliation procedure has all but eradicated this advantage potential claimant employees held, and the “shock value” of being hit with an unexpected claim.
Nowadays, a potential claimant has to (and a potential Respondent can) commence ACAS early conciliation prior to a claim being lodged. Provided a prospective Claimant wishes to continue with ACAS early conciliation when they are contacted by an ACAS early conciliation officer (“CO”) the CO must, at the very least, try to contact the prospective Respondent to see if they are willing to negotiate. Accordingly, it is now “virtually impossible” for an ET1 Claim Form to simply arrive ‘out of the blue’.
Whilst this article is concerned with what steps should be taken on receipt of an ET1 Claim Form there is nothing preventing these steps being taken earlier; namely when a business is notified of a potential claim by way of ACAS Early Conciliation, or even earlier should a claim be anticipated (or threatened).
Engage with the individuals involved
Early engagement with relevant people involved with the allegations made by the Claimant (or potential Claimant) is crucial. This is the primary way of establishing what information is necessary to obtain to form the basis of any defence to the allegations made by the Claimant. It is also a key way of getting to know the personality of the Claimant, if you have not had many dealings with them yourself.
If it appears the allegations are misconstrued then it is important to swiftly ascertain what actually happened to begin to form a response to the claim. It is also worth informing these employees that they may have to give evidence at an Employment Tribunal on this matter. This will often have the effect of persuading any such employees to be clear, and not to bend the truth. There are few things more damaging to a defence in an Employment Tribunal claim than a key individual telling you one thing at the start of a claim only for the position to change later, for example when witness statements are being prepared. Even if the issue is a minor one a late change in position can have severely damaging consequences; not only to the credibility of the witness but the Respondent as a whole. Conversely, if for whatever reason, it appears that the employee has been treated unlawfully then establishing this at an early stage, combined with a swift offer of settlement often has the potential ability to save the employer a great deal in compensation, management time and legal fees.
Obtaining and collating all relevant information and documentation without delay is crucial. It gives the Respondent an opportunity to see if there are any obvious gaps or inconsistencies in its own position a long time before disclosure of documents is ordered by the Employment Tribunal. If such gaps or inconsistencies exist then again it is extremely beneficial for these to be identified at the initial stages and, if possible, rectified prior to the Response being lodged.
There is also a duty on parties to any litigation to preserve documents and other materials that may be relevant to proceedings. Even without this duty there is little more frustrating for an employer than when they know there is a hand written note which protects their position, but when the time for disclosure comes this note cannot be obtained or located.
Consider any potential reputational risk
Occasionally the risk of publicity and damage to reputation will be equal to, and possibly outweigh, the legal problems presented by an ET claim. The large majority of full hearings in the Employment Tribunal are held in public and witness statements must generally be made available to the public and press once the witness has taken the stand. Even at the outset of a case, it is worth considering whether the details of the claim (even if the allegations are not true) are likely to be newsworthy or could cause reputational damage. If they are, then consider whether this makes an early settlement a more attractive option or whether specific public relations steps need to be taken to mitigate risk.
Identifying the best and worst realistic outcome
With all of the above considered, do a risk assessment. What is the best realistic outcome? What is the worst realistic outcome? Not only will the answer to these questions help manage the expectations you are placed under, being the first level of defence to the allegations, but it will also provide clear guidance on the best way to proceed. These outcomes should be realistic and ought to be generated after an analysis of the initially available evidence. An employer should ask whether they are in a position to oppose the claim and accept the potential impact in terms of possible awards and loss of productivity if they do, or whether it would be better to avoid the impact and seek to settle the claim without delay.
The steps outlined in this article allow an employer, along with its legal advisers, to adopt a proactive approach in dealing with claims. Such an approach can, at worst prevent an employer from undermining their position when the claim is issued, and at best reach a conclusion with the employee which represents the best possible outcome from the employer’s perspective.