A Respondent s Guide to Employment Tribunal claims

Transcription

1 A Respondent s Guide to Employment Tribunal claims Prepared by: LHS Solicitors LLP For further information, please contact: Stuart England Tel: markelhelpline@lhs-solicitors.com A Partner You Can Trust

2 Contents 1. Introduction 3 2. About LHS Solicitors LLP Services 3 3. About Markel 3 4. Action Upon Receipt of an Employment Tribunal Claim Form 4 5. The ET3 Response Form 5 6. The Process following Submission of the ET3 Response Form 6 7. Preliminary Hearings 7 8. Case Management Orders 8 9. The Hearing Process and Representation Potential Awards to the claimant Your Management of Time and the Costs Involved Settlement and Settlement Terms Cases with Multiple Respondents Fees and Costs 15 Appendix 1: List of Suggested Documentation 16 Appendix 2: Overview of the Employment Tribunal Process 18 Appendix 3: Table of Employment Tribunal Fees 19 2

3 1. Introduction We have been appointed by specialist insurer Markel, to advise on and manage the Employment Tribunal process on their behalf. This document provides guidance about Employment Tribunals. It will give you an outline of the processes involved so that you can know what to expect and also how you can assist us to prepare the best case. If your insurance is accepted by Markel, a Solicitor / Barrister will be appointed to defend the Employment Tribunal claim and will be at hand to respond to your queries. However, we ask that, in the interests of limiting time and costs, your first recourse is to this guidance for answers to any general queries, as much of the information is set out within. It will be important for this guide to be kept close at hand throughout the process as we will refer to sections specific to your case throughout the lifetime of the Employment Tribunal claim. It is therefore important that everyone involved with the case reads this guidance. 2. About LHS Solicitors LLP LHS Solicitors LLP employs approximately 50 Barristers and Solicitors who specialise in the delivery of employment law services to over 250,000 business clients in the UK. That makes us one of the largest UK providers of employment law services, with a depth and breadth of employment law expertise that few other firms can rival. That expertise and experience has enabled us to develop a specialist Employment Tribunal Litigation Team, which is dedicated to resolving Employment Tribunal disputes on behalf of our clients. LHS Solicitors LLP can be contacted via: Corinthian House 17 Lansdowne Road Croydon Surrey CR0 2BX Tel: Fax: markelhelpline@lhs-solicitors.com Web: 3. About Markel Markel are an international insurance company offering specialist policies for charities, businesses and professionals. Claims are managed in-house by a dedicated team of experienced claims managers, handlers, loss adjusters and technical staff. Markel have appointed the expertise of LHS Solicitors LLP to provide assistance and support in relation to a wide range of employment law disputes in order to help prevent a claim under the employment law protection section of your policy. 3

4 4. Action Upon Receipt of an Employment Tribunal Claim Form The Employment Tribunal Claim Form (the ET1 Claim Form ) The first step in bringing an Employment Tribunal claim is for the employee ( the claimant ) to have contacted ACAS for early conciliation. This applies to most claims heard in an Employment Tribunal. For this reason, you may have been expecting a claim where the conciliation did not result in a resolution of the dispute. However, in some cases, you may not have been contacted by ACAS as the claimant may have indicated to ACAS that he or she simply wished to proceed with a formal Employment Tribunal claim without first participating in early conciliation. The first step of the formal process is for the employee to file an ET1 claim form with the Employment Tribunal. The deadlines for filing claims vary but most must be filed within three months from the date of the cause of action. However, time limits are extended to allow for early conciliation to take place. Most claims are brought against the current or former employer, but it is also possible for a claimant to join named individuals to the proceedings. This is often seen when the complaint is one of unlawful discrimination. Any party against whom the claim is brought is referred to as a respondent. In the ET1 claim form the claimant will set out the type of claim or claims they are making, the background and details of their claim(s) and the remedy they are seeking. The form must also set out the claimant s name and address and each respondent s name and address. The Employment Tribunal will send you this form with a date by which you must file your defence, which is referred to as the ET3 response form. What you need to do on receipt of an ET1 Claim Form You will need provide us will all documentation relevant to the issues in the case, whether it is helpful to the defence of the claim or not. Do try to think broadly about what evidence you have that might help to rebut the claims made. Appendix 1 sets out a list of suggested documentation. It is helpful if the documents are provided to us in chronological order and with an explanation of any documents which are not self-explanatory. It is also helpful to have a brief statement from you setting out your comments on each complaint made by the claimant in the ET1 claim form. 4

5 5. The ET3 Response Form Once we have the ET1 claim form and relevant documentation from you, together with instructions to act, we will prepare a draft of the ET3 response form for your comment and send it to you (usually by ). The deadline for filing the ET3 response is generally 28 days. The consequence of it not being submitted and accepted within the time limit is that the Employment Tribunal will reject a response subsequently entered. In this case the only recourse is to ask the Employment Tribunal to reconsider the decision to reject the response. If the response is ultimately not accepted, an employment judge will determine the claim and you will only be able to participate in the hearing to the extent permitted by the judge. Whilst 28 days may seem a relatively long period, it can take some time to properly prepare the response, particularly where the complaint is complex and involves a number of different individuals. Therefore, it is important that you get all the necessary information to us as soon as possible. The ET3 response must state whether the claims are resisted in full or in part and set out the grounds of resistance. This is an outline of legal and factual grounds on which the claims are resisted. You should note that it is not necessary to include a detailed explanation of the facts of the case, which is more appropriate for the witness statement stage of the procedure (see below). It is important that we have the contact details for someone authorised to approve the response and that this person is available to assist us with it until it is approved and ready for filing with the Employment Tribunal. Therefore, please do not assume you can simply send us the papers and leave it with us to complete and submit. We will also need you to confirm a few other details for the response. These details are as follows: the proper name of the respondent where incorrectly named by the claimant; the claimant s job title; hours of work; gross and net pay; and the details of any other benefits, including whether the claimant was a member of a pension scheme. Finally, it is important to ensure the ET3 response form is correct. Any inaccuracies at this stage could prejudice the credibility of your case and consequently the defence of the claim. 5

6 6. The Process following Submission of the ET3 Response Form There is an initial consideration stage once the claim and response have been filed. The aim is to identify and deal quickly with weak cases which should not proceed. An employment judge will consider the case to ensure there are arguable complaints and defences. The claim or defence (or part thereof) may be dismissed if the judge is not convinced following representations by the relevant party. As most claims are fact-sensitive (particularly discrimination and whistleblowing claims), very few claims are likely to be struck out at this stage. In straightforward cases, the Employment Tribunal will, if it has not already done so, write to the parties with case management orders which are essentially directions to the parties of the steps they must take, by certain deadlines, in order to prepare the case for the final hearing. These generally include orders for: the claimant to provide a schedule of loss; - the disclosure of documents by both parties; the preparation of a hearing bundle; the exchange of witness statements. Please see Section 7 of this document for further details of these stages of the process. 6

7 7. Preliminary Hearings In some cases, particularly where the legal issues in the case are complex or where there are jurisdictional issues to determine, the Employment Tribunal may list the case for a preliminary hearing to take place either at the Employment Tribunal in person or by telephone. Preliminary hearings are not required in every case and witnesses are generally not required to attend, unless it involves a jurisdictional issue. The purpose of many preliminary hearings is to address any applications by the parties, to identify the legal issues, to issue the case management orders and set a hearing date. The types of jurisdictional issues that might be addressed include compliance with time limits and employment status. The Employment Tribunal can also consider making the following orders: a strike out order: this means that all or part of a claim or response would continue no further and can be made where the Employment Tribunal considers the claim or response has no reasonable prospect of success (note: there are also other specific grounds for making a strike out order). a deposit order: this means that either the claimant or respondent has to pay a deposit to be held by the Employment Tribunal for continuing with a particular contention of their case if it is considered that it has little reasonable prospect of success. If it is not paid, that aspect of the case will be struck out. We will advise you if we consider that an application for a strike out or deposit order is appropriate in your case. You should note that the Employment Tribunals can be reluctant to consider a preliminary hearing for a strike out or deposit order where there is little time or cost saving to be made by dealing with the case in this way. 7

8 8. Case Management Orders You should note that serious consequences can occur if a party fails to comply with an Employment Tribunal s case management orders, including having the claim or response struck out. Schedule of loss The claimant is usually ordered to provide a breakdown of what sums are sought in respect of their claim. This is referred to as a schedule of loss. We will ask for your comments on its accuracy as this is helpful for the preparation of a counter-schedule of loss and also for any settlement discussions. Disclosure of documents and hearing bundle It is a standard Employment Tribunal direction that all documents relevant to an issue in the claim that are in a party s possession, custody or control and on which either party may wish to rely should be disclosed to the other party. Parties are expected to carry out a reasonable search of documents within their control and documents can include photos and electronic records, such as s, or text messages, as well as traditional written material. The duty of disclosure requires each party to disclose to the other not only those documents which support their case but also any documents which harm it, or which support the other side s case. The importance of full disclosure cannot be overstated and the Employment Tribunals take disclosure extremely seriously. Failure to give full and frank disclosure can result in harsh penalties, including costs consequences or having all (or part) of the response struck out. Having prepared the response, it is likely we will hold most of the documents by the time disclosure is due. If there are any further documents, you should aim to provide these to us in advance of the date for disclosure rather than on a piecemeal basis. The duty of disclosure is ongoing throughout the process. Therefore, if any further documents come to light after disclosure has been completed, you should send them to us without delay. The parties will usually produce a written list of their documents, exchange these lists and then either exchange bundles in full or request copies of any documents from the other party s list of which they do not have a copy. The documents will be combined to form a joint hearing bundle which will be indexed and paginated. It should contain all the documents to which the Employment Tribunal will be referred at the hearing of the case. Hearing bundles are usually finalised around two to four weeks before exchange of witness statements so that the witness statements can refer to the appropriate pages of the hearing bundle. 8

9 Witness statements We will discuss with you and advise on the appropriate witnesses who should provide a statement and attend the hearing. They will usually be those individuals who were involved in the decision-making process. For example, in an unfair dismissal case, the witnesses will generally be the person who made the decision to dismiss the employee and the person who conducted any appeal meeting. Detailed witness statements must be prepared for each witness who will give evidence at the final hearing. These witness statements will be exchanged with the other side prior to the final hearing (usually simultaneously) on the date ordered by the Employment Tribunal. In order to prepare statements, we will ask each witness to provide us with a first draft of their evidence. It is important that each witness provides this information as ultimately the witness statement will be their sworn evidence and, further, it helps to ensure that we have all the relevant factual information for the statements. Witness statement preparation is often the most labour-intensive (and thus expensive) part of preparing the case. We will need considerable cooperation and time from each witness over a period of several weeks prior to the exchange of witness statements. In general, a person will not be permitted to give evidence at the main hearing if a witness statement has not been prepared and exchanged (although the Employment Tribunal may exercise its discretion to allow the witness evidence). In England and Wales, the Employment Tribunal Rules provide that witness statements are taken as read at hearings, so witnesses will no longer need to read them out as a matter of course. It is important all witnesses attend the hearing, without such attendance their evidence will hold little if any weight. Hearing dates The Employment Tribunal will notify the parties of the hearing at least 14 days before the date it is to take place, although in practice hearings tend to be listed quite early on in the process. The Employment Tribunal does not always ask the parties for dates of availability prior to setting the hearing date. It is therefore important that you ensure that both you and your witnesses can attend on the date(s) listed. Please note that the Employment Tribunals can be relatively inflexible about changing hearing dates without sufficient notice and a very good reason. If a hearing date causes difficulty for you or any witness, please tell us without delay, providing the reasons and any supporting documentation. Any request for a new hearing date should ideally be made at the earliest stage for the best chance of having it granted. 9

10 9. The Hearing Process and Representation Employment tribunal hearings are either preliminary hearings (as described in Section 4) or final hearings. The Employment Tribunal usually consists of a legally qualified employment judge and two lay members (comprising one nominated by an employers organisation and the other from a union or employees body). However, in some cases (e.g. unfair dismissal cases) the employment judge can sit alone. The party which has the initial burden of proof will normally present its evidence first (the employer generally goes first in an unfair dismissal case and the employee in a discrimination case), but the order in which evidence is given is ultimately a matter for the Employment Tribunal hearing the case. Evidence is by way of witness evidence (witness statement and oral evidence) and documents in the hearing bundle which the parties ask the Employment Tribunal to read. A large part of the hearing will be taken up by witness evidence. Cross-examination is a necessary but often stressful part of the hearing, since it is the task of the other side s representative to reveal and exploit any weaknesses in your case. At the end of evidence and submissions, the Employment Tribunal usually retires to decide whether the claims succeed and, if so, what if any compensatory award or other order should be made in favour of the successful party. The Employment Tribunal s judgment may be announced at the hearing or reserved and sent to the parties in writing. Employment tribunal hearings are generally held in public, so note that members of the press could potentially attend, save for exceptional circumstances when the Employment Tribunal considers it necessary to restrict press reporting. We will advise you at the appropriate time of the steps that witnesses should take in order to prepare for giving evidence at the hearing. Well prepared witnesses are key to the successful defence of a claim. In general, we will represent you at the hearing. However, in some circumstances, we may arrange a barrister to defend the case on your behalf. We will advise you of the arrangements for the hearing in advance of it. Scottish cases have a different hearing process and, further, there are generally no orders for disclosure of documents and witness statement exchange. If the claim has been issued in Scotland, you should note that we will generally prepare the case in the same way as set out in this guidance and use a barrister to attend the hearing on your behalf. An overview of the Employment Tribunal process can be found at Appendix 2. 10

11 10. Potential Awards to the Claimant The following is a general guide to the kinds of compensation that can be awarded in the main claims that can be brought in an Employment Tribunal. Of course each case will turn on its own facts. Unfair dismissal In unfair dismissal cases, Employment Tribunals have the power to order reinstatement or re-engagement (where the claimant wants this and it is reasonably practicable in the circumstances) or compensation. In practice, awards for reinstatement or re-engagement are rare. The compensation awarded is on the basis of what is just and equitable. It is made up of two elements, a basic award and a compensatory award. Compensation is only awarded for any financial losses. There is no award for upset or injury to feelings. The basic award is calculated on a fixed formula, taking into account age, length of service (up to 20 years ) and the claimant s weekly wage (up to a maximum figure per week). This award is currently capped at 13,920 (from 6 April 2015). A compensatory award is based primarily on the loss of past and future earnings. This element is currently capped at the lower of one year s gross wages or 76,574, although they can be higher in certain types of case (for example, there is no maximum compensatory award for whistleblowing claims). There is also an amount paid for the claimant s loss of their statutory employment protection rights. This is generally a sum of approximately 300. Any compensation is also subject to deductions for various reasons including where: the claimant contributed to the dismissal; the dismissal is unfair only for procedural reasons which would not have affected the ultimate substantive decision to dismiss; the failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures (this can also result in an uplift to compensation if you failed to unreasonably comply with the Code); and by any new earnings. In addition to the above mentioned deductions, the claimant is under a duty to make reasonable efforts to obtain alternative employment, or to 'mitigate' their lost earnings. If the claimant does not do this, the Employment Tribunal can limit any award made for lost earnings, even if the claimant s actual losses are much higher. The burden of proving a failure to mitigate by the claimant rests on you. Therefore, it is useful if you can check appropriate websites and publications to see what suitable opportunities have arisen during the claimant's period of unemployment and keep records. You should provide these records to us on an ongoing basis up to the date of the hearing so that, if appropriate, we can advance an argument that the claimant did not mitigate their lost earnings. Breach of contract Breach of contract awards in the Employment Tribunal are capped at 25,000. If the claimant has brought a claim for breach of contract, it is open to an employer to pursue a counter-claim if there are grounds on which to do so. Please discuss this with us if you consider this to be the case. Discrimination Discrimination case awards are unlimited. As well as loss of earnings, claimants can receive damages for injury to feelings. The claimant also has a duty to mitigate his or her losses by seeking new employment. The Employment Tribunal can also make a recommendation that the respondent take steps to reduce the effect of discrimination on you and on any other person. It could include for example re-training staff; publishing selection criteria used for staff transfers or promotions; setting up a review panel to deal with equal opportunities, harassment and grievances. If your employer does not comply with a recommendation, your award of compensation could be increased. 11

12 11. Your Management of Time and the Costs Involved It is important to identify at the outset your objective(s) when faced with a claim. It is only natural for an employer who believes it has done nothing wrong to want to robustly defend a claim from either a current or former employee. No organisation wants a reputation for always settling claims, no matter how spurious. That said, the management time and legal costs involved in defending proceedings all the way to a hearing should not be overlooked. A key consideration will always be whether defending a claim all the way to a final hearing properly justifies the cost of litigation and the risk of being unsuccessful. Unlike in the civil courts, costs in the Employment Tribunal do not follow the event. In other words, there is no general rule that the loser pays the winner s costs (except for Employment Tribunal fees). An Employment Tribunal will only order one party to pay the other party s costs in very limited circumstances. Therefore, even if you successfully defend the case, you are unlikely to recover your legal costs in getting to that point. We will provide you with advice about settlement to assist you to weigh up at an early stage the various pros and cons of defending litigation and whether, as an alternative, an economic settlement might be preferable. We understand that in some cases you may not wish to settle on a point of principle, however, we recommend you take an objective view and take into account the time and cost to you, especially where there is the possibility of a commercially sensible settlement. Further, an unreasonable approach to settlement could lead the Employment Tribunal to make an order that you pay some or all of the claimant s costs, therefore it is important to try to take a sensible view. 12

13 12. Settlement and Settlement Terms As you can see from this guidance, defending an Employment Tribunal claim is both costly and timeconsuming. It is therefore worthwhile giving consideration to the potential settlement of the claim. We generally encourage the exploration of possible settlement of the case at an early stage and before the parties become too entrenched in their respective positions. Practically all settlements are without the admission of any liability by the respondent and include a confidentiality clause. The latter may be a valuable part of the deal as it is not something an Employment Tribunal can require of the parties. A settlement usually involves money and sometimes a reference with agreed wording. The reference is often a key bargaining counter as the Employment Tribunal cannot award one to a successful claimant. References are usually agreed on the basis that they are just factual. This means that they do no more than confirm the claimant s dates of employment and job title. Settlement negotiations can be undertaken with the other party (or their adviser) directly, or through an ACAS conciliation officer. All settlement discussions take place on a without prejudice basis and, provided there is a genuine attempt to settle the existing dispute, they cannot be put in evidence before the Employment Tribunal. The ACAS conciliation officer is a neutral party who will try, often successfully, to assist the parties to negotiate a settlement of the case. ACAS conciliation is a free service and communications with the conciliation officer are confidential. A settlement through ACAS becomes binding as soon as the parties have agreed the settlement terms, which are contained in what is referred to as a COT3 Agreement. Another means by which a settlement can be achieved is through judicial mediation. This is an alternative way to resolve a dispute without going through the normal Employment Tribunal hearing process. It involves bringing the parties together for a mediation at a private preliminary hearing before a trained Employment Judge who remains neutral and tries to assist the parties in resolving their disputes. A judicial mediation is confidential and held in private. Nothing said or taking place at the judicial mediation may be referred to at any subsequent hearing and the employment judge mediating is precluded from any further involvement in the case. There is a cost attached to mediation which is payable by the employer. Even where settlement is being explored, we will in tandem be preparing the case for the final hearing just in case a settlement cannot be achieved. We will of course keep you advised on all matters as they progress and take instructions from you when required. 13

14 13. Cases with Multiple Respondents We are bound by certain professional rules which provide that we cannot act if there is a conflict, or a significant risk of a conflict, between two or more clients. The overriding consideration is always the best interests of each of the clients concerned and, in particular, whether the benefits of acting for both of the clients outweigh any risks. In cases of alleged discrimination, it is open to the claimant not only to bring an Employment Tribunal claim against the employer ('the first respondent'), but also to name the employee who carried out the alleged discrimination as a respondent ( the second respondent ). In these cases we must assess whether there is a conflict of interest which prevents us from acting for both the first and second respondents. An employer will be liable for discriminatory acts committed by one of its employees if the acts occurred during the course of that person's employment. This is called vicarious liability. Where the first respondent does not rely upon what is referred to as the 'employer's defence' (see below), we are able to act for both the first and second respondents as the interests of both parties are the same, that is to resist the claims made by the claimant. In fact in such cases it is often beneficial to act for both respondents as it helps to ensure cooperation and the presentation of the strongest defence possible. In such a case we will require instructions from both the first and second respondents as the case progresses. However, an employer can avoid this vicarious liability by showing that it took all reasonable steps to prevent the employee from committing acts of discrimination in the course of their employment. In order to establish this employer's defence, the Employment Tribunal will consider what the employer did before the alleged discrimination (rather than subsequently); whether the employer has a written equal opportunities policy; whether its managers were given equal opportunities training; and whether it had in the past disciplined employees who committed acts of discrimination. The employer cannot rely on this defence where it did not take steps it would have been reasonable to take, even though taking those steps in the particular case would have made no difference. Where the employer's defence is relied upon, we will not be able to act for both the first and second respondents as their interests conflict. This is because, if the claimant's case for discrimination is proved, then the first respondent is essentially arguing that only the second respondent should be held liable for the discrimination as it had taken reasonable steps to prevent the discrimination from occurring in the first place. In practice, the employer s defence can be difficult to establish unless the first respondent has robust documented policies and procedures in place aimed at ensuring equality in the workplace. Therefore, in some cases, it may be worthwhile considering whether to run this defence at all as it may be preferable to have both the first and second respondents cooperate in order to present the strongest possible defence. 14

15 14. Fees and Costs Payment of fees for Employment Tribunal claims came into force in Both issue and hearing fees will be payable by the claimant (unless he or she qualifies for fee remission under the civil courts fee remission system). You should note that, although most fees are payable by the claimant, he or she may seek to recoup the cost through increased settlement offers or ask the Employment Tribunal to order payment if his or her claim succeeds. It is the general position that a fees order will be made by the Employment Tribunal in this scenario. In some instances, fees are payable by a respondent. The amount of these fees depends on the claim or application being made. We will advise you if any fees are payable by you and whether or not these fees will be paid under your insurance policy. A table of the Employment Tribunal fees is at Appendix 3. In general, you will not have to pay the claimant s legal costs. However, the Employment Tribunal can order you to do so if it believes that there has been abusive, disruptive or unreasonable conduct of your case or thinks that your defence to the claim was so weak that it should not have been relied upon. If you are VAT registered, under your policy of insurance you will be responsible for the payment of VAT on our invoices. Often these amounts are then recoverable by you from HMRC. As to whether there are any other costs to be incurred by you, this will depend on the level of cover provided by your insurance and any policy excess which may exist. This type of information will be contained within your policy documentation. If there are to be any additional fees or costs not covered under your policy of insurance then we will write separately to you regarding such matters. 15

16 Appendix 1: List of Suggested Documentation You are required to provide us with all relevant documents. This list is not exhaustive, merely a guide, and indeed some of the documents listed may not exist. 1. Contract of employment/offer letter 2. Any applicable company policies e.g. disciplinary and grievance 3. Copies of disciplinary warnings/sanctions 4. Copies of all correspondence or documentation in relation to the complaint, to include the following: (where applicable) Grievance letter Letter inviting claimant to grievance meeting/disciplinary hearing Evidence in support of grievance/disciplinary issues Notes of grievance/disciplinary investigations Letter indicating the outcome of the grievance/disciplinary hearing Letter of appeal Letter inviting claimant to the appeal hearing Letter to claimant indicating the outcome of appeal hearing Letter of resignation Any letters written in response to the claimant's letter of resignation All interim correspondence concerning the procedure followed or other issues relating to the complaint Any subsequent relevant correspondence Any contemporaneous statements taken All correspondence with relevant witnesses with whom investigations were undertaken All other documents created or collated as part of the investigation All minutes and notes taken, both handwritten and typed, at investigatory meetings All minutes and notes taken, both handwritten and typed, at the grievance meeting(s)/disciplinary hearing(s) All minutes and notes taken, both handwritten and typed, at appeal hearing(s) All documents and correspondence relating to background events 5. Where a claim relates to redundancy/change in terms and conditions: Announcement to employees At risk letter sent to claimant Notes of first consultation meeting Notes of second consultation meeting Notes of further consultation meetings (if applicable) Letters sent to claimant following the consultation meetings Redundancy selection criteria and marks awarded in respect of all affected employees Any consideration or offers of alternative employment made to claimant and outcome Letter confirming dismissal/contract change Letter of appeal Appeal hearing minutes and notes taken Letter confirming outcome of appeal Details of redundancy payment paid 6. Where a claim relates to a sickness absence dismissal: All medical certificates (called statements of fitness for work) All correspondence with the claimant relating to absence and sick pay Any medical reports or occupational health reports obtained All minutes and notes taken, both handwritten and typed, at meetings to discuss absence and potential dismissal Letter confirming incapacity dismissal Letter of appeal Appeal hearing minutes and notes taken Letter confirming outcome of appeal 16

17 7. Where a claim relates to a capability/performance dismissal: Details of performance reviews and targets set All correspondence with the claimant relating to performance All minutes and notes taken, both handwritten and typed, at meetings to discuss capability/performance and potential dismissal Any consideration or offers of alternative employment made to claimant and outcome Letter confirming capability dismissal Letter of appeal Appeal hearing minutes and notes taken Letter confirming outcome of appeal 8. Exit interview forms or notes 9. P Medical certificates (if relevant) 11. P11D 12. Payslips for the last 6 months of employment 13. Return to work interviews and any counselling notes 14. Occupational health reports (if relevant) 15. Medical reports (if relevant) 16. Appraisals for the last 2 years (if relevant) 17. Internal interview assessments (if relevant) 18. Documents created as part of without prejudice discussions including correspondence and minutes of meetings 19. All internal s/memos/notes relating to claimant, where relevant to the claim 20. Description of claimant s duties and responsibilities 21. Details of claimant s benefits including: Pension Bonus/Commission Medical Insurance Permanent Health Insurance Annual Leave Entitlement 22. Documents relating to mitigation, for example, copies of job opportunities for which the claimant is potentially suitable. 17

18 Appendix 2: Overview of the Employment Tribunal Process ACAS early conciliation for up to one month (can be extended) ET1 Claim Form filed and issue fee paid by claimant ET2 Letter issued to respondent by Employment Tribunal enclosing ET1 and, in some cases, case management orders/notice of hearing ET3 Response Form filed and accepted (28 day time limit) Employment Tribunal initial consideration Preliminary hearing to determine any preliminary issues and/or issue case management orders Case management orders issued in writing Schedule of loss from claimant Disclosure of documents and hearing bundle agreed Witness statement exchange Final hearing Employment Tribunal s Judgment Notes: 1. This represents the process in a straightforward case where the ET1 claim and the ET3 response are accepted and all relevant time limits are met. 2. Where instructed to explore settlement, these discussions are generally ongoing in tandem with the formal Employment Tribunal process. 18

19 Appendix 3: Table of Employment Tribunal Fees Fees payable by claimant: Type of case Claim fee Hearing fee Unpaid wages Redundancy pay Breach of contract Unfair dismissal Equal pay Discrimination Whistleblowing Potential fees payable by respondent: Employer s contract claim 160 Application to set aside a default judgment 100 Application to dismiss a case following settlement 60 Application to reconsider a decision following a final hearing 100 Type A hearing 350 Type B hearing Fee for judicial mediation

20 LHS Solicitors LLP Corinthian House, 17 Lansdowne Road, Croydon CR0 2BX Tel: Fax: LHS Solicitors LLP is authorised and regulated by the Solicitors Regulation Authority No and registered in England and Wales. Registered Number OC VAT No Registered office: Queens Chambers 5 John Dalton Street, Manchester M2 6ET. Abbey Protection Group Limited is the corporate member of LHS Solicitors LLP. Markel Corporation is the ultimate holding company for Abbey Protection Group Limited. ETCLAIMS: 2014/07 20