IM in the Know: Tips For Successfully Defending An Employment Tribunal Claim

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The Employment team at Irwin Mitchell advise businesses of all sizes and sectors in managing HR and employment law issues including the defence of tribunal claims.

As a management team, one of the key ways to ensure that you are able to robustly and successfully defend a claim is by the way in which disciplinary and other matters are managed before dismissal, such as getting support through a service such as our IMhrplus service.

However claims cannot always be avoided and, in the unfortunate event that your business is faced with an Employment Tribunal claim, we give some tips below for what you can do to best protect your business.

1. Plan Ahead

1.1 – Most cases are won or lost on the evidence presented, rather than because a witness performed badly on the day. In cases of dismissal, the Judge will want to know why you decided to dismiss, what evidence you relied upon and whether you considered any alternatives;

1.2 – It can be difficult for a dismissing or appeal manager to remember and therefore explain exactly what thought processes he/she went through before reaching a decision unless there is a record of it. This can be in the form of a properly worded dismissal letter which sets out in some detail what evidence was considered, any mitigation raised and whether alternatives to dismissal were considered and rejected and the reasons for this;

1.3 – We also recommend that employers prepare a “checklist” which reminds the dismissing/appeal manager of these points and requires him/her to record the reasons for their decision. You do not need to give the checklist to the employee at the time of the dismissal.;

2. Understand The Case Against You

2.1 – You must carefully review the ET1 (claim form) and understand all of the allegations made against the company;

2.2 – The filing of a defence (ET3) is a really important stage of the process and it is not necessarily about putting in a lengthy contrary version of events:

2.2.1 – Sometimes a defence may be limited to making to a summary of defence based on the legal position of the claim and sometimes it may be tactically better and appropriate for a fuller response which sets out a more detailed chronology of what happened. Sometimes you may be able to accept an allegation if it is true (it doesn’t help to deny everything where it would not be supported in evidence as this may just irritate the Judge and could have costs implications).

2.2.2 – Sometimes there may be insufficient information in the claim form to enable you to understand exactly what is alleged and how that relates to the specific legal claims being made or there may be valid arguments for seeking dismissal of parts of the claim as pleaded because, for example, certain claims have been brought out of time.

2.3 – Take legal advice at an early stage as this could, in the long run, be extremely beneficial in positioning a robust defence. If you were to get legal support at a later stage and advice was that certain points had not been addressed which should have been, the scope for applications to amend and/or raise points which could have been made at an earlier stage is much more limited, certainly without the risk of costs orders against you.

3. Start To Collect Evidence

3.1 – It is extremely important to gather all contemporaneous documents to support your version of events or undermine the employee’s case against you – BUT you cannot “pick and choose” what evidence you disclose;

3.2 – You must keep all relevant documents, even if they undermine your case (as occurred in the mock tribunal where potentially damaging memo’s between HR and company managers were included in the bundle);

3.3 – Remember that documents are not limited to paper or to original documents, but include anything on which information can be stored or recorded, including emails, video or tape recordings or photographs. Plans, diaries and minutes of minutes (including Board minutes) may also be relevant;

3.4 – Letters and documents between you and your solicitor about the case do not have to be disclosed, nor do documents that are written on a without prejudice basis, but only where these are a genuine attempt to resolve the legal dispute between you and the employee. Simply marking a letter “without prejudice” will not by itself prevent the document forming part of the evidence.

4. Prepare Witness Statements Carefully

4.1 – You must decide who you need to give evidence to support your defence. In an unfair dismissal claim you will normally need the dismissing manager and appeal manager to give evidence to explain why they reached their decisions. Depending on the issues in dispute, you also may need to call the investigating officer and any relevant witnesses;

4.2 – The statement should set out the witness’s own version of events in full and cross reference any relevant documents. The witness must be comfortable with what is written both in terms of the content and the language used. Witnesses can lose credibility if it is obvious that they have had minimal involvement in the preparation of their statement.

5. How To Deal With Unrepresented Claimants

5.1 – Many Claimants represent themselves both in the run up to, and at the hearing. This can be frustrating and you may find that you are expected to do much of the work to get the case ready for the hearing such as preparing the bundles etc. Be co-operative – it will help you to look like the reasonable employer you are;

5.2 – Judges have a duty to ensure that the parties are on an equal footing. When one side is unrepresented the Judge will often explain to them relevant legal issues or direct what needs to be done. This does not mean that the Judge is biased in favour of the Claimant – and this will not put your organisation’s defence at a disadvantage.

6. Prepare For The Hearing

6.1 – It is not necessary for your witnesses to memorise the documents in the bundle. They will be taken to all relevant documents during their evidence. That is not to say that they should ignore it either! Witnesses should read their statements ahead of the hearing and all relevant documents to make sure that they are fresh in their minds;

6.2 – In most cases the witness’s evidence in chief (that is the evidence set out in their statement) will be taken as read. This means that the witness will not normally read out their statement and will be cross examined by the Claimant’s representative as soon as they are called to give evidence;

6.3 – Many witnesses are anxious about what to wear. It is best to be neat and tidy, but there is no need to wear a suit unless that is normal attire for the witness. In some cases it is more appropriate for witnesses to wear their work uniform.

7. On The Day

7.1 – Make sure all your witnesses know where the tribunal is located and what time they are expected to arrive. Find out in advance if there is available parking or public transport options;

7.2 – Remind your witnesses not to discuss the case in public areas, such as the lift, outside the building in the smokers area, the local coffee shop etc, to avoid sensitive information being inadvertently overheard by the Claimant, a member of their family or legal advisor.

8. Etiquette

8.1 – In unfair dismissal cases the Judge sits alone. In other cases, including those involving allegations of discrimination, the Judge is joined by two wing members. It is customary to refer to the Judge and any panel members as “sir” or “madam”;

8.2 – Please stand whenever the Judge and panel members enter or exit the room;

8.3 – There will be a separate table where witnesses sit to give evidence. The table will have a copy of the tribunal bundle and witness statements. Witnesses cannot use their own copies.

9. Giving Evidence

9.1 – Each witness will be asked to confirm their name and address and that the statement in front of them is the statement they have given in the proceedings. I f there are any mistakes, this is the time to speak up;

9.2 – Witnesses should direct their answers to the Judge rather than the advocate asking the question. This can feel unnatural as most people prefer to respond to the person asking the question;

9.3 – Give honest answers. It is better to be upfront about the weaknesses of your case rather than attempt to cover them up. You are not expected to be perfect;

9.4 – It is better to keep your answers simple and to the point – answer the question directed at you, clarify points where necessary but do not waffle. If you do not know the answer to a question, say so. Do not pretend that you do, or make something up and if you feel it would be helpful to refer to a document to assist you, please ask to do so;

9.5 – Speak slowly and clearly and do not allow yourself to be hurried. Go at your own pace;

9.6 – Do not get angry or get drawn into a “slanging match” with your cross examiner – it’s their job to try and undermine your evidence and make you look bad. Don’t make it easy for them.

10. Stay Calm And Collected Throughout

10.1 – The environment of an Employment Tribunal is stressful and is likely to be an unfamiliar one to some, if not all of your witnesses. It is usual to feel nervous;

10.2 – It is important that your witnesses act respectfully at all times. They should not react loudly to evidence they disagree with (by shouting “that’s rubbish” etc, or by dramatically shaking their heads, tutting or sighing or storming out etc). If an issue arises that you or one of the witnesses disagree with discretely pass a note to your advocate or wait for a break to speak to him/her;

10.3 – If you and your witnesses remain calm and polite throughout the hearing, the Judge will have a good impression of your organisation. Whilst that isn’t enough by itself to win a case, it is important, especially where the outcome relies on whose version of events is most credible.

Remember, whatever the outcome, this will be a valuable learning experience even if the only lesson you take from it is never to appear before an Employment Tribunal again!
Want to know more?

Training managers on how to manage disciplinary and grievance investigations is a great way to ensure that they do all they can to best position the organisation in the event of a claim following dismissal and understand the tests which Tribunals will apply when considering if a decision to dismiss was fair or not.

Irwin Mitchell will deliver in-house training for your managers using case examples that are specific to your sector and the common issues which they face. We also, as part of our training programme, run mock Tribunals as a full or half day training event – a great way for managers to see a case from start to finish acted out by the Irwin Mitchell team, wiith interaction from the delegates who get opportunity to ask questions of witnesses and vote on outcome.

For information on any of the above or our IMhrplus service, please contact:

Jenny Arrowsmith

Associate Solicitor
For and on behalf of Irwin Mitchell LLP
Wellington Place, Leeds, LS1 4BZ

DDI: 0113 218 6446
Mobile: 07718 668646

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