Claim and response
The ET1 claim form
After early conciliation and receiving an Employment Tribunal Certificate, an Employment Tribunal claim is started by presenting an ET1 Claim form to an office of the Employment Tribunals within a prescribed period of time. In most cases, this will be three calendar months less one day. You can find out more about the statutory time limits here.
From 1 October 2005 Claimants must use a prescribed ET1 form in order to present a claim which is available here.
The claim form must include "relevant required information" which includes:
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The Claimant's name and address.
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The name and address of the Respondent.
The claim (or a part of the claim) will not be accepted if:
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The prescribed form has not been used.
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All the relevant required information is not included in the claim.
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An Employment Judge considers there is no jurisdiction to consider the claim (or a part of it).
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The claim (or part of it) is in a form that cannot sensibly be responded to.
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The claim is otherwise an abuse of the process.
A claim will also not be accepted if:
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It does not have an early conciliation number.
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It does not institute any relevant proceedings.
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If applicable, it does not confirm that one of the early conciliation exemptions applies.
If the claim (or a part of it) is accepted it will be given a case number. A copy of the claim will be sent to the Respondent together with information including whether or not any part of the claim was rejected. If practicable and appropriate, a copy of the claim will also be sent to Acas who will offer conciliation services free to try and facilitate a settlement of the claim.
If a claim (or part of it) is not accepted, or if the claim is defected in some way, the claim form will be returned to the Claimant with a Notice of Rejection explaining why it has been rejected or why the claim is defected. The Notice will provide information about how the Claimant can apply to have the decision to reject the claim reconsidered.
If the claim has been rejected (in whole or in part), the Claimant may make an Application for Reconsideration on the grounds that the decision to reject the claim was wrong or that the notified defect can be rectified. The Application for Reconsideration must be submitted in writing within 14 days of the date on which the Notice of Rejection was sent, in effect the date on the Notice of Rejection.
The Claimant may request a hearing for the Application for Reconsideration (which will be heard by an Employment Judge sitting alone).
If an Employment Judge finds that the decision to reject the claim was wrong, the claim will be treated as having been presented to the Employment Tribunal on the original date the claim was presented. However, it is important to note that if the claim (or part of it) is allowed to proceed following the rectification of a defect, the claim will be treated as having been presented on the date that the defect was rectified. This is important because it can raise issues with respect to the time limits to present a claim. For example, if the claim is about unfair dismissal, and the defect was significant and was rectified more than three months after the date of dismissal, then the rectified part of the claim may have been presented after the time limit to present the claim had expired.
From 6 April 2010, in cases where the claim includes an allegation about a protected disclosure, the Employment Tribunal Office may, with the express consent of the Claimant send a copy of the claim form, or extracts from it to the relevant Regulator. The information will then be assessed by the Regulator, and if appropriate, the matter may be investigated and acted on in accordance with the Regulator's procedures.
The ET3 response form
An Employment Tribunal claim is responded to by using an ET3 which is a prescribed form that became mandatory on 1 October 2005.
Under the 2013 Rules, a Respondent has 28 days from being sent a copy of the ET1 form to respond to the claim. An application for an extension of time to respond can be applied for, either before or at the same time as responding to the claim. If the Respondent makes an application for an extension of time, the response will not be rejected pending the outcome of the completed response.
A response will be rejected by the Tribunal if:
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It is not presented in the prescribed form.
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It does not include all the required information.
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It has not been presented within the time limit or within any extension to the limit that was granted during the original 28-day period.
If a response is rejected, or if the claim is defected in some way, the response will be returned to the Respondent together with a Notice of Rejection explaining the reasons why the response was rejected or why the response is defected. The Notice will explain how the Respondent can apply for an extension of time where appropriate or a reconsideration of the rejection.
With the exception of where the reason for rejection is that the response was presented out with the time limit, a Respondent can make an Application for Reconsideration of the rejection on the grounds that the rejection was wrong or that the notified defect can be rectified. The Application for Reconsideration must be presented to the Employment Tribunal in writing within 14 days from the date on which the Notice of Rejection was sent.
The Respondent may request a hearing for the Application for Reconsideration (which will be attended by an Employment Judge sitting alone).
Where necessary, an Employment Judge may exercise a general discretion to extend the time limit. If the Judge decides that the original rejection was correct but that the defect has been rectified, the response will be treated as having been presented on the date of rectification.
Under the former Rules, a failure to enter a response form within 28 days would purportedly prevent a Respondent from participating further in the proceedings. In such cases, an Employment Judge would generally issue a default judgment to determine the claim without a hearing. Under the former Rules, an application for an extension of time had to be presented to the Employment Tribunal within the initial 28-day limit with an explanation of why an extension was needed. An extension would be granted if the Employment Judge considered it just and equitable to do so.
In Moroak (t/a Blake Envelopes) v Cromie [2005] IRLR 353, [2005] ICR 1226, EAT and in Bone v Fabcon Projects Ltd [2006] ICR 1421, EAT it was held that an Employment Judge has the power to review a rejection of an ET3, not only if it relates to the defective contents of the response but also where it relates to its presentation out with the time limit.
The test for the exercise of this discretion based on what is just and equitable. In effect, an Employment Judge should apply the principles set out in Kwik Save Stores Ltd v Swain [1997] ICR 49, EAT. Those principles mean that all relevant documents and other factual materials should be put to the Employment Judge to explain why the response was not presented in time and the basis on which the Respondent seeks to defend the case on its merits. In exercising this discretion, the Employment Judge should take into account all relevant factors, including the merits of the defence and the Respondent's explanation or lack of explanation for the delay. The Employment Judge is required to reach a conclusion which is objectively justified on the grounds of reason and justice and should take into account the possible prejudice to each party.
Under the 2013 Rules, where the Employment Tribunal accepts the response, it will send a copy to the parties.
Application to extend the time limit to lodge a response
An application to extend the time limit for presenting a response must:
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Be in writing.
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State why the extension is sought.
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Except where the time limit has not expired, be accompanied either by a draft of the proposed response or an explanation of why this is not possible.
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Request a hearing if desired.
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Be copied to the Claimant.
A Claimant may oppose the application and can present written reasons for doing so within seven days of receipt of the Respondent's application.
An Employment Judge may determine the Respondent's application without a hearing. If the extension is refused, any prior rejection of the response will still stand.
If the extension is allowed, any judgment previously issued under rule 21, which deals with the effect of non-presentation or rejection of a response, or non-contested cases, will be set aside.
Non-lodgement or rejection of response, or case not contested
An Employment Judge must issue a judgment to determine a claim without a hearing when a Respondent has:
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Failed to present a response to a claim.
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Indicated that no part of the claim is to be contested.
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Presented an application for reconsideration that has been presented after a response has been rejected.
If the Employment Judge considers that there is insufficient information to determine the claim, the Judge may make an order requiring any additional information that is necessary.
Where a hearing is required before the claim can be determined, this will take place before a Judge sitting alone. The Respondent will receive notice of any judgment or hearings. Unless, and until an extension of time is granted, the Respondent will be entitled to participate in any hearing, but only to such an extent as permitted by the Judge.
Initial assessment of claim and response forms
The 2013 Rules introduced a requirement for an Employment Judge to consider the documents relating to each claim "to confirm whether there are arguable complaints and defences within the jurisdiction of the tribunal."
If a Judge is of the opinion that the Employment Tribunal does not have the jurisdiction to consider the claim (or part of it) or that the claim has no reasonable prospect of success, the Judge will notify the parties of this and the reasons for the notification. In those circumstances, the Judge will order that the claim (or part of it) will be dismissed on a date that will be specified in the notice. A Claimant may present written representations setting out why the claim should not be dismissed, before that date.
If no representations are presented, the claim (or relevant part of it) will be dismissed from the date specified without further order.
If the Claimant presents written representations setting out why the claim should not be dismissed before the specified date, an Employment Judge will consider those representations and may allow the claim to continue, or schedule a hearing to determine whether or not the claim should be allowed to continue.
A similar procedure applies to a response. If a Judge is of the opinion that the response has no reasonable prospect of success, the Judge will notify the parties of this and the reasons for the notification. The Judge will order that the response will be dismissed on a date that will be specified in the notice. A Respondent may present written representations setting out why the response should not be dismissed, before that date. In addition to this, the notice to the parties must specify the consequences if the response is dismissed, specifically that the effect of a dismissal "shall be as if no response had been presented."
If no representations are presented, the response will be dismissed from the date specified in the notice without further order.
If the Respondent presents written representations setting out why the response should not be dismissed before the specified date, an Employment Judge will consider those representations and may allow the response, or schedule a hearing to determine whether or not the response should be allowed.
Admissibility of evidence in pre-termination negotiations
With effect from 29 July 2013, under s.111A(1) of the Employment Rights Act 1996, any "pre-termination negotiations" in certain circumstances are inadmissible as evidence at an unfair dismissal hearing.
Pre-termination negotiations allow an employer to have a discussion with an employee about terminating that employee's contract under the provisions of a settlement agreement. In effect, "any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee" cannot be relied upon by the employee evidence in unfair dismissal proceedings.
However, such evidence will be admissible under the provisions of s.111A(3) if a Claimant alleges that the dismissal was automatically unfair. Automatic unfair dismissals include dismissals for specified reasons related to health and safety, working time, or asserting a number of statutory rights.
In addition, under the provisions of s. 111A(4) if an Employment finds that there was "improper behaviour" or words or actions connected to improper behaviour by one of the parties, the Tribunal may limit the application of s.111A(1) to the extent that it considers just.
Improper behaviour will include all forms of harassment, bullying, intimidation, physical assault, criminal behaviour, discrimination, putting pressure on a party, not giving a reasonable time to consider any proposal, telling an employee that he will be dismissed before any form of disciplinary procedure has started etc.
Paragraph 18 of the Acas Code of Practice on Settlement Agreements provides a non-exhaustive list of examples of improper behaviour.
Paragraph 19 of the code states that the above examples "are not intended to prevent, for instance, a party setting out in a neutral manner the reasons that have led to the proposed settlement agreement, or factually stating the likely alternatives if an agreement is not reached, including the possibility of starting a disciplinary process if relevant."
