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The employer’s guide to defending a claim for unfair dismissal

Recent changes to the rules surrounding claims for unfair dismissal have succeeded in reducing the number of spurious claims reaching tribunal judges. However, whether you own your business or you are a manager responsible for HR issues, it always pays to be prepared for unfair dismissal claims in order that you can defend your organisation’s interests. By knowing how to react and when to consult expert employment solicitors, you can improve the chances of successfully defending a former employee’s claim.

What is unfair dismissal?

A former employee may have grounds to file a claim for unfair dismissal in situations where they believe there was no valid reason for having their employment terminated. There may also be a case to answer where the dismissal of an employee hasn’t followed a company’s own disciplinary procedures.

What should you do if you receive a claim?

The first thing you should check upon receipt of an employment tribunal claim is its validity. The claim form is an ET1, which will include the date on which the initial claim was received by the tribunal. Claimants generally have three months after being dismissed to make a claim, so you might be able to stop the action by demonstrating that the claim period has lapsed. The general reason for the claim will be given in the first instance, but an ET1 form will rarely go into too much detail. After consulting with employment solicitors, you should provide a response to the claim via an ET3 form - which much be lodged with the tribunal within 28 days. You will be sent an ET3 form for your reply, but is may be easier and quicker to complete the online version. Letters to the tribunal will be rejected, and could delay the process.

After submitting your initial response, you will need to start collating any documentary evidence and witness statements that pertain to the claim. The tribunal will give you a date by which all of the documents you will rely on during the hearing must be submitted to the claimant. You will also receive documents from the claimant in order that you and your legal counsel can prepare a thorough defence. Documents that may be relevant to defending a case of unfair dismissal might include disciplinary notes, contracts, meeting minutes, letters, employer policies and notes made during investigations.

If you are relying on witness statements as part of your defence, you should obtain them as soon as possible - whilst events are still fresh in their minds. You will need to submit these statements to court before the deadline set by the tribunal. You will also need to ensure that anyone making a witness statement will be available to attend the hearing in person.

Exploring the possibility of a settlement agreement

Whether you are uncertain about your chances of successfully defending a claim for unfair dismissal or you want to avoid the negative exposure a tribunal may cause, you can put a speedy end to a claim with a settlement agreement. With the intervention of expert employment lawyers, you and your former employee may be able to reach a legally binding agreement that suits both parties - which may include a sum of compensation that is agreeable to both parties. This could be far cheaper than a potential award at tribunal, and you can insist on a confidentiality clause that should prevent colleagues and other employees from assuming that your willingness to settle was an admittance of liability.

What should you do if you lose the case?

Unfair dismissal tribunals are held in two parts. The first stage of the hearing is to decide whether the claim should succeed. If your former employee wins their case for unfair dismissal, a second stage will commence - which involves setting a level of compensation. Regardless of how strong you believe your defence is, you should always plan for a defeat at tribunal. Any mitigating factors that may reduce the amount of compensation payable - up to a year’s salary - should be brought to the judge’s attention. For instance, if you can demonstrate that the claimant has not taken reasonable steps to find new employment - using local job adverts, salary information and industry employment statistics - you could be able to limit the amount of compensation paid.

Of course, the best way of preventing unfair dismissal claims is to operate a fair and non-discriminatory workplace that observes employment guidelines and HR procedures. However, if you are unfortunate enough to be the subject of a claim, being prepared and having expert legal counsel at your side will drastically increase your chances of mounting a successful defence.

This was posted in Bdaily's Members' News section by Amabile Guglielmino .