Defending an employment tribunal claim
The tribunal process can be difficult to navigate, and our specialised Employment team can assist you from the first indication of a claim through to the final hearing.
Sometimes resolving an employment dispute amicably will not be possible and can result in claims being brought in an employment tribunal. Whether you wish to defend the claim, or achieve a commercial settlement, our team of employment specialists can advise how best to achieve your desired outcome. We regularly defend all types of claims, including unfair dismissal, discrimination, harassment, victimisation, whistleblowing and claims for unpaid wages. We are here to provide you with advice on the best approach to follow if your business is faced with a claim.
Our team of employment lawyers can support you throughout the entire Tribunal process from ACAS Early Conciliation through to the final hearing or we can provide tailored, ad hoc advice at any stage. Our services include:
- Merits assessment of the ET1 and claim form, identifying key risks and devising an effective strategy;
- Drafting a robust and comprehensive ET3 response.;
- Preparing for and attending any preliminary hearings;
- Managing disclosure, collating relevant documents, and assisting with bundle preparation;
- Drafting and responding to applications to the tribunal; and
- Advising on settlement and alternative resolution.
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Frequently Asked Questions
Find answers to your most pressing questions about our services and processes.
What is an unfair dismissal?
Unfair dismissal refers to the termination of an employee’s contract by their employer without a potentially fair reason or without following a fair procedure.
Who can claim unfair dismissal?
Employees with at least two years of continuous service are generally protected against unfair dismissal. However, certain dismissals, like those involving whistleblowing or health and safety, may not require the two-year service period for protection.
If an employee succeeds in a claim for unfair dismissal, they may claim compensation for loss of earnings or request reinstatement or reengagement.
What are the potentially fair reasons for dismissal?
The potentially fair reasons for dismissal include conduct, performance or capability, redundancy, legal requirements or statutory restrictions, or some other substantial reason (SOSR). However, employers must follow a fair and reasonable process prior to dismissing an employee.
What is an automatically unfair dismissal?
Automatic unfair dismissal is a specific category of dismissal that is deemed to be automatically unfair. To be able to claim automatic unfair dismissal an employee does not need a minimum length of service. Automatically unfair reasons for a dismissal include, but are not limited to, dismissals:
- related to whistleblowing;
- related to family reasons (i.e. in connection with childbirth, statutory maternity/paternity leave);
- for a health and safety reason;
- for asserting a statutory legal right;
- for acting as an employee or trade union representative; and
- for being a part-time or term-time employee.
What is an unlawful deduction from wages claim?
An unlawful deduction from wages claim arises when an employer withholds or deducts money from an employee’s wages without proper legal justification or without the employee’s consent.
When can you deduct wages?
Employers can make lawful deductions from wages when they are legally required to do so, authorised under the terms of the employee’s employment contract or when the employee has given their consent for the deductions to be made.
Who can bring discrimination claims?
Individuals who have experienced discrimination or unfair treatment based on their protected characteristics can bring a discrimination claim. There is no minimum length of service required to bring a claim, and individuals are protected from discrimination from the beginning of their employment or engagement. This includes the application process.
What are the different types of discrimination claims?
There are several types of discrimination claims. These include:
- direct discrimination (treating someone less favourably because of a protected characteristic);
- indirect discrimination (applying a provision, criterion or practice that disproportionately affects a certain group);
- discrimination arising from a disability (treating someone unfavourably because of something arisign in consequence of their disability);
- harassment (unwanted conduct relating to a particular characteristic);
- victimisation (treating someone less favourably because they have done a protected act or because it’s believed that they have done, or will do, a protected act); and
- failure to make reasonable adjustments for disabled employees.
What are protected characteristics?
The protected characteristics under the Equality Act 2010 are:
- disability;
- gender reassignment;
- marriage and civil partnership;
- pregnancy and maternity;
- race;
- religion or belief;
- sex;
- sexual orientation; and
- age.
What remedies are available in a discrimination claim?
If an employee is successful in bringing a claim the employment tribunal could make a number of remedies. These include:
- compensation for loss of earnings;
- injury to feelings;
- reinstatement or reengagement if employment was terminated; and
- recommendations, such as providing training or implementing adjustments.
There is no overall cap on the compensation in a discrimination claim and therefore they can potentially be of high value.
What is a breach of contract?
A breach of contract occurs when either the employer or the employee fails to fulfil their contractual obligations as outlined in the terms of the employment contract.
Who can bring a breach of contract claim?
Both employees and employers can bring claims for breach of contract.
Where can bring a breach of contract claim be brought?
A breach of contract claim can be pursued either in the civil courts or the employment tribunal.
Employers cannot bring a free‑standing breach of contract claim against a former employee in the Employment Tribunal. Instead, an employer may only pursue a breach of contract claim as a counterclaim, and only where the employee has first brought a Tribunal claim against them.
An employee may bring a breach of contract claim in the Tribunal only after their employment has ended, and the claim must be presented within three months less one day of the alleged breach. There are also other considerations when deciding whether to proceed in the Tribunal or the civil courts, including the differing cost risks in each forum.
Breach of contract claims brought in the Employment Tribunal are subject to a £25,000 statutory cap. By contrast, claims issued in the civil courts are not subject to any financial limit, carry a six‑year limitation period, and do not require the employment to have terminated or for the employee to have brought any Tribunal proceedings.