November 6, 2017

Notice of Legal Proceedings – Be Prepared for Any Historical Claims [10-min read]

Every employer dreads them but few can avoid them – the dreaded notice that legal proceedings have been taken against them.

This can range from an industrial injury claim (generally speaking handled by the employer’s liability insurance), to notice of civil proceedings, to notice of an Employment Tribunal claim.

This article sets out the steps to be taken in the event of an Employment Tribunal claim:

  1. Notice of Employment Tribunal Claim
  2. Why Employers Should Read up on the Employment Tribunal Claim Process Now
  3. What do I do if I Receive a Tribunal Claim?
  4. Timescales for Employers to be Aware of with Employment Tribunal Claims
  5. What happens if I Miss the Timescale on an Employment Tribunal Claim?
  6. What Happens after the Response is Submitted?
  7. Notice of Civil Claim – an Employment-Related Claim Pursued Through Civil Courts
  8. Notice of Employment Tribunal Claim

    Those who read our monthly Employment Law Guide will know the Employment Tribunal system has been a hot topic in recent months.

    Here’s a quick recap of the history:

    In 2013, for the first time the Government introduced a fee structure for Employment Tribunal claims. This was as much as £1,200 to bring even the simplest of unfair dismissal claims, and led to a reduction of 70% in claims and protracted legal action by employee organisations such as trade union Unison.

    Unison’s appeal to the Supreme Court led to a recent ban on fees and a commitment to refund all fees paid since 2013, giving the Government a sizeable bill (approx. £30m).

    Why Employers Should Read up on the Employment Tribunal Claim Process Now

    It is expected that following the ruling to scrap Tribunal Fees claims will return to their pre-2013 levels – worrying news for employers.

    It is also expected that anyone who might have been deterred from bringing claims since the fee structure was introduced will now be able to make a claim and that claim, although well out of time (cases must generally be brought within three months) may be looked on sympathetically by a Tribunal.

    So, a double whammy for employers – an expected increase in new claims and a potential backlog of old claims.

    With the above in mind, it is vital employers know the steps they need to take to deal with new claims.

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    What do I do if I Receive a Tribunal Claim?

    For those who are clients of Moorepay, contact us immediately.

    Register the claim by emailing it to:

    » etclaims@moorepay.co.uk

    Or call our dedicated Advice Line:

    » 0845 073 0240 (selecting option 2)

    Timescales for Employers to be Aware of with Employment Tribunal Claims

    Generally speaking an employee has three months to make a claim. That runs from the date of dismissal, or the date of the event upon which the employee relies.

    Here are some examples:

    • An employee dismissed on 1/1/17 has until 31/3/17 to make the claim. This date can be altered slightly if, for example, the employee did not receive the dismissal letter until a few days after it was posted. The key date is when they received the letter.
    • An employee who makes a discrimination complaint and relies on a specific act of discrimination has three months from the date of the act to make the claim (and not for example three months from the date of any dismissal)
    • An employee who complains they have not received proper payment of wages has three months from the date of the respective wage payment to make the claim (unless the complaint is part of a series of non-payments, in which case the three months runs from the last of these)

    Whilst the employee has a relatively generous three months to make a claim, an employer has only 28 days to respond to it.

    It is vital therefore to ensure that you respond to a claim promptly. The 28 day period runs from the date of the Notice of Claim (and not from the date of receipt), so a few days are already lost.

    The claim form will set out clearly the date by which a response must be submitted.

    The key here is never to leave this until the last minute, if that can be avoided.

    What happens if I Miss the Timescale on an Employment Tribunal Claim?

    Occasionally things can go wrong. Sometimes claims are incorrectly addressed and never received by an employer, or are received late.

    If this happens, get legal advice immediately, so that an application for extension of time can be made.

    Although time limits are strictly adhered to, a Tribunal will agree to extend time if there are good reasons for delay.

    All of that said, employers are strongly advised to deal with any new claim as a matter of strict priority. The consequences of a late response could mean the employer is debarred from defending the claim and could face a potential award of several hundred thousand pounds!

    What Happens after the Response is Submitted?

    The parties to the claim are required to:

    1. Disclose relevant documents to the other side (anything which is relevant to the case, whether it helps the employer’s case or hinders it).
    2. Prepare a Bundle of documents for use when the case comes to hearing (this task generally falls on the employer)
    3. Prepare detailed witness statements for any witness whom the parties intend to call to give evidence
    4. Exchange witness statements with the other party (or parties – sometimes there can be multiple Claimants in a case, for example a wage claim, or multiple respondents, for example in a TUPE case, where there is more than one potential employer)
    5. Agree a list of issues which the Tribunal is required to decide on
    6. Attend any preliminary hearings to decide on legal issues, such as the right to bring the claim or to determine the future conduct of the case
    7. Prepare legal submissions (legal arguments)

    All of the above, generally speaking, come with specific deadlines set by the Tribunal (Scotland and Ireland have their own systems which do not correspond exactly with the above).

    As you can see it is a complex process, and it is wise to obtain legal advice and representation should you be faced with a claim as it can soon take up a significant amount of an employer’s time.

    Notice of Civil Claim – an Employment-Related Claim Pursued Through Civil Courts

    Occasionally (albeit rarely) an employee will decide to pursue an employment-related claim in the Civil Courts.

    An employment-related claim through this means can sometimes be more attractive.

    For example, whereas a Breach of Contract claim in the Employment Tribunal carries a maximum aware of £25,000, there is no such limit in a Civil Claim.

    In addition, the time limits for submitted a Civil Claim are far more generous, making this route more attractive.

    This article does not deal with the steps to be taken with a Civil Claim – again clients of Moorepay should contact us immediately.

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    About the author

    Tom Muirhead

    Tom has represented clients across the UK, both at Employment Tribunal and in the Employment Appeal Tribunal. With a strong background in HR at senior level, Tom is adept at explaining the legal framework to clients in a practical way.