Defending an employment tribunal claim

Morton Fraser Partner Innes Clark
Innes Clark
03 April 2014

You will be notified of a claim against you by the tribunal office and will be sent a response form (ET3). You must fill in and return the form to the relevant tribunal office to reach it by the date referred to in the covering letter from the employment tribunal. It is your responsibility to ensure that the tribunal office receives the response within the relevant time limit.

You can respond online and the form will go automatically to the tribunal office dealing with the case. There is no need to send a copy of your form or any other documents by post if you do this but you should keep a copy of your response form for your records.

Late responses

If you do not send in your response within the time limit or your response does not provide the information required, the tribunal will not accept your response and you may not be able to defend the claim.

In these circumstances, the tribunal can consider issuing a default judgment. A default judgment allows an employment judge to give a decision about the claim without the claimant having to go to a hearing. You should seek advice if a default judgment is issued against you.

Employment tribunal hearings

The hearing takes place before an employment judge sitting alone or before an employment judge and two lay members.

The proceedings are not intended to be as formal as a court. There are no wigs or gowns and the parties remain seated throughout. However, witnesses give their evidence under oath or affirmation and most witnesses do find tribunal hearings to be quite formal.

At the beginning of the hearing there are no opening statements. However, the employment judge may ask some initial questions to clarify the exact nature of the dispute. The party on whom the onus lies will then call their first witness. For example, in an unfair dismissal case where the dismissal is admitted the employer will usually lead evidence first.

In Scotland, as in other court procedures, this takes the form of the party’s legal representative asking a series of questions (known as examination-in-chief). In England and Wales, written statements of evidence are exchanged in advance of the tribunal hearing. Rather than carrying out an examination-in-chief, the witness statement will be taken as read.

The party who has given evidence (or whose statement has been taken as read) is then cross-examined by the opposing party’s representative who will put their client's version of events to that witness. They will  attempt to challenge and/or undermine the other party's case. The representative of the party who called the witness then has the opportunity to ask any further questions to clarify any points raised in cross-examination. This is known as re-examination. The employment tribunal panel may also ask questions at any stage.

The same process is then followed for any other witnesses giving evidence on behalf of the party on whom the onus lies. The roles are then reversed and the other side will then lead evidence from their own witnesses.

After evidence has been led by both sides closing submissions are made by each party.

The judgment

Unless the employment tribunal 'reserves' its judgment, the employment judge will announce the judgment at the end of the hearing. If the judgment is reserved you will receive it in writing at a later date.

Employment tribunal awards

For details of employment tribunal awards click here.


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