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How to defend an employment tribunal claim

business women looking through employee files

With proper preparation, an employer can successfully defend an employment tribunal claim.

Employment tribunals resolve disputes between employees and employers, such as when an employee raises an issue such as unfair dismissal or discrimination.  

It’s always best to try to prevent issues from escalating to the point where you need to hold a tribunal, but sometimes it’s unavoidable. Typically, to defend an employment tribunal claim, you’ll need to:

  1. Respond to the claim
  2. Prepare for the employment tribunal
  3. Attend the tribunal

If your case is unsuccessful, you may have to pay compensation or appeal the decision.

By law, all employees who want to claim against their employer must try to resolve the issue through ACAS first. If that doesn’t work, they can take their issue to a tribunal.

As the outcome can have a serious impact on your business, it’s best to seek legal advice on how to defend your case. Our team of professional business solicitors can help you put together the best possible defence – contact us to discuss your circumstances.

While the exact process may depend on your case, there are a few basic steps you must take to defend yourself against an employment tribunal claim.

Responding to a claim

If the claimant has gone through the correct channels, you should be expecting to receive a complaint after the ACAS stage didn’t resolve the issue. If you receive a complaint without having been through an ACAS review, include it in your response, as this could have an impact on the outcome.

Check the date the claimant says the issue occurred – they need to raise a complaint within three months. If it’s outside this period, the claim may be void.

When you receive official notification of the claim, you should also get form ET3. Fill it out within 28 days – you can also respond online. If you can’t respond in 28 days, you can request a longer response period. If you fail to fill it in, the claimant could automatically win their case.

Steps before an employment tribunal

An employment judge will consider the complaint with your response and decide whether the case is strong enough to go to a tribunal.

If it is taken directly to a hearing, you’ll be given at least 14 days’ notice to prepare evidence for your defence. You should receive an outline of what the proposed compensation is, and a schedule, often called a Case Management Order, that says when you need to organise and submit copies of documents and witness statements.

You may be asked to attend a preliminary hearing. This is usually where you’ll review the case and be given the date, time, and length of the hearing. You’ll also get details of what you’ll need to provide.

Bear in mind, you can still try to negotiate a settlement with the claimant before the case is taken to a tribunal.

Preparing for an employment tribunal

The evidence you need to prepare will depend on the complaint, but you’ll usually need:

  • Documents: These may include contracts, payslips, pension scheme details or anything else that’s relevant. You can ask to see documents from the claimant, and they can do the same.
  • Witnesses: People directly connected to the complaint can act as witnesses. You can ask them to attend the tribunal, or take down a signed, written statement beforehand. If someone refuses, you can apply to the court to have them ordered to appear.

Prepare everything you need in advance to ensure you’re organised on the day.

What to expect at a tribunal

You can present your own case, or you can ask someone, such as a lawyer, to do it on your behalf. Both parties will have a chance to outline their position, and you’ll answer questions from the judge as well as the complainant. You can also question the complainant and any witnesses.

Some things that could help you to defend your position include:

  • Highlighting anything in their statement or application that isn’t true.
  • Presenting a compromise.
  • Provide wider context to the issue to give a clear idea of the events that surrounded it and have relevant evidence on hand.

The decision may be announced on the day, or you could receive the outcome in the post days or weeks after the tribunal.  

What happens after an employment tribunal?

  • If you win

Usually you won’t receive any compensation, but if the complainant has clearly been unreasonable, you may be able to apply to have some of your fees covered. You’ll need to apply to the tribunal.

  • If you lose

Depending on the circumstances surrounding the claim, the consequences that you’ll face will vary. You may have to:

  • Pay compensation
  • Give them their job back
  • Pay their expenses for the tribunal (including fees and witness expenses)
  • Pay any damages or loss of earnings incurred because of the issue
  • Reimburse any state benefits they may have claimed because of the issue

Usually the final amount is based on the total financial loss your actions have caused the claimant, with interest applied starting the day the judgement is made. If you pay everything within 14 days, you won’t pay interest.

  • If you want to appeal the decision

Within 14 days of receiving the outcome, you can write to the tribunal office and ask them to revisit the decision. But, you must have strong reasons for doing so. If you think there was a legal mistake during the hearing, you can contact the Employment Appeal Tribunal to make an appeal.

Fees: How much does it cost to defend an employment tribunal claim?

Costs depend on the type of tribunal. Visit the court and tribunal form finder on the HMRC website for more details.

You’re responsible for paying your fees for the tribunal, and the expenses of any witnesses you ask to appear. If you lose the case, you may have to pay some or all the claimant’s fees, too. There’s also a fee if you appeal the decision.

Defending an employment tribunal claim can be stressful and emotional, so it may be best to seek legal advice. Our business solicitors can help you to navigate the claim and will work to give you the best possible chance at protecting your business and its reputation.

Contact us for professional advice or learn more about the legal side on our employment tribunals page.