Responding to an unfair dismissal claim

This article considers the steps that need to be taken should your school, college or trust be on the receiving end of an employment tribunal claim for unfair dismissal.

There is a relatively short timeframe for submitting a response to the claim. The response will stand as the organisation’s key statement of case, it cannot easily be amended and will be one of the first documents that a tribunal judge reads. So it is essential to get it right and get it submitted on time.

Receiving notice of claim

It is important to have the right procedures in place so that formal documents sent to the school by post are passed on to those who need to know about them as quickly as possible. Employment tribunals generally post the notice of claim to the respondent employer, so you need to ensure that the documents get from the post box to the right people as quickly as possible.

As a respondent to a claim, you have just 28 days to file your response with the employment tribunal. That is 28 days from when the notice of claim was sent by the tribunal, not when it was received.  So by the time you receive the claim, you could already be a few days into this period, especially if there are postal delays or bank holidays to take into account.

Make sure that important correspondence is picked up in the same way during school holidays and that staff know who will be available to attend to urgent matters that come in during the school holidays.

The organisation’s response must be filed with the employment tribunal within the 28 day time limit.  If this is not complied with, then a tribunal can issue a judgment in default against your organisation. This means that the claimant wins their claims and the organisation loses its chance to defend the claims and present its side of the story.

Submitting a response

The bare minimum that needs to be done within the 28 days is to complete the tribunal’s ET3 form and submit this to the tribunal. The ET3 must contain the organisation’s full name and address, and whether it wishes to resist the claim.

In almost all cases it will be preferable to provide additional and full details of the organisation’s response to the claim. This is normally called a ‘grounds of resistance’. This is the organisation’s first opportunity to set out the nature of its defence. It will usually contain a detailed rebuttal of the specifics of the claimant’s claim, often on a line by line basis.

You may be anticipating the unfair dismissal claim where the former employee has previously made their displeasure about the decision to dismiss clear and has gone through the ACAS early conciliation procedure.

Note though that a claimant can instruct ACAS that they do not wish to negotiate.  In which case ACAS will not inform the organisation about the early conciliation process being started (and finished).  Employment tribunals are dealing with a high volume of cases and we have seen instances where it has taken a number of months for a claim to be processed and sent to a respondent.

Unfortunately this means that if a particularly contentious decision dismissal has been made, the organisation might not know whether or not the former employee has made a claim a number of months after termination. We have seen this take up to six months.

Note that the current Labour Party manifesto proposes that the limitation date for unfair dismissal claims is increased from three months from the date of dismissal to six months, which would extend this window further.

Even if you are anticipating a claim, it is only when you receive the claim form that you will get to see exactly how they have pleaded their case. You will also get to see if the claimant has made any additional claims of unfair dismissal, such as whistleblowing or discrimination. The claimant can bring such claims even if they have never threatened these during any dismissal process, although evidentially this can count against a claimant.

Documentation to prepare a response

You will need to consider whether to instruct your solicitors to assist with preparing the response. If so, you will need to compile the potentially relevant documents to enable them to prepare the response.

In all cases, the contract of employment, remuneration information and relevant policies (e.g. disciplinary policy) will be needed.  In a misconduct type dismissal, they will need to see the disciplinary investigation as well as supporting evidence and statements, minutes of hearings, the outcome letter and any documents relating to any appeal.

Disclosure

Once your organisation is in receipt of a claim, it is under a duty to take reasonable steps to preserve all documentation in its control that may be relevant to the dispute.

This applies to documentation that favours the organisation’s case and which is adverse to it. Later on in the claim all parties will be obliged to disclose to the other documents in their possession relevant to the dispute.

The definition of documents is wide and includes all electronic format documents and correspondence, including emails, texts messages, instant messages and social media posts (e.g. on the school’s social media platform).  It will extend to documentation that might normally considered confidential, such as minutes of governors or trustee meetings or papers provided for such meetings, to the extent that they contain material relevant to the dispute.

You will need to consider early on how the organisation will comply with this duty and this may mean informing certain employees of the claim and of the need to make sure that they do not delete any documents that might be relevant to the claim, for example from their email account.

Insurance

You should check if your organisation can benefit from any insurance policy that might provide access to legal representation in response to employment tribunal claims. We have previously written about the Risk Protection Arrangement (RPA) for schools, which is an alternative to commercial insurance.

In summary, there is lots to do in a short space of time. If you would like to explore how the Employment team at Thomson Snell & Passmore can help education sector businesses respond to such claims, please do not hesitate to get in touch.