Don’t get crushed by staff litigation

Independent practitioners inevitably find litigation can be stressful, time-consuming and expensive. 

In the first of a series of three articles about the employment tribunal process, Julia Gray explains the key stages and how doctors who employ staff can avoid common pitfalls experienced by others.

Before making a claim in the employment tribunal (ET), claimants have to speak to a conciliator from The Advisory, Conciliation and Arbitration Service (Acas) about the possibility of reaching a settlement without bringing legal proceedings. 

This stage is called ‘early conciliation’. Usually, the claimant will authorise Acas to contact the employer – known in the ET as ‘respondent’ – to discuss early conciliation before a claim is issued, so it is a good idea to ensure practice staff know where to direct HR-related inquiries such as this.

Engaging in early conciliation is optional for the employer. In some cases, it is best to wait and see whether a claim is forthcoming before making an offer of settlement.

It can be tactically effective to provide a robust denial of the allegations via Acas to deter a claim, but you will only be able to do this if the complaints have been properly described in sufficient detail, which they often are not at this early stage. 

Remember that any discussions you have with Acas are ‘without prejudice’, which means they are confidential and cannot be referred to in legal proceedings.

Claimants do not always want Acas to make contact, so the first you hear of a claim might be when you receive official papers from the ET.

Most claims must be initiated within three months of the act complained of. For an unfair dismissal claim, for example, that is three months from the termination date. 

Act fast to beat the deadline

If your private practice receives papers from a court or tribunal, never ignore them. They should be treated with the utmost urgency. 

There are strict time limits in place for responding to claims, even those that appear to have no merit or appear to be addressed to the wrong person. 

The deadline for responding to an ET claim is 28 days from the date when the papers are sent to you. The deadline date will be clearly stated in the papers. 

The first page of the papers will look like our reproduced letter (right). The deadline for responding is underlined in the paragraph with bold text.

Parties to ET proceedings are not required to have legal representation, but respondents are usually represented by a solicitor. If you intend to instruct solicitors, do not delay. 

You or your practice may hold an insurance policy or professional membership – for example, with the BMA – which covers the cost of defending an employment claim, so check this first. 

Involve legal help

Drafting the response to the claim is a key stage when you should involve your legal adviser, if you have one. You will need to factor in time to collate and share relevant documents and other information with them. 

Apart from the cost of legal advice and representation, it costs nothing to bring, or defend, an ET claim, as fees were abolished in 2017. And unlike some other types of court proceedings, the loser of an ET claim is not normally required to pay the costs of the winner. 

A party may be required to pay towards their opponent’s legal costs where their conduct in the proceedings has been unreasonable – for example, missing deadlines and wasting the other parties’ time.

Extensions to the response deadline are granted only in exceptional circumstances and must be obtained before the original deadline has passed. 

If you miss the deadline, you will need to apply for your late response to be accepted out of time and there’s no guarantee you will be permitted to defend the claim.

Submit a detailed response

Your defence to the claim is called the ‘response’ and the online form you must complete to submit the response is called the ‘ET3’6. 

Even if you think the claim is hopeless – for example, the claimant was never employed by you or their version of events does not stack up – it is important to submit a comprehensive response. 

If you do not respond in the given time limit, the claimant can win their case by default.

Your version of events

The ET3 can be accompanied by a supplemental document setting out your detailed response, called the ‘grounds of resistance’. This should include your version of the events set out in the claim and any other relevant information – it is important that you do not miss out any key points. 

For example, if the claim relates to allegedly unlawful behaviour such as discrimination, then your response will need to address each instance of alleged behaviour including, where relevant, the motivation behind it. 

The ET has different rules from the criminal court, but, as you have heard in many police dramas, ‘it may harm your defence if you do not mention something at this stage which you later rely on in court’.

A medical practice comprising partners is not usually a legal entity in its own right, so claims will usually be against all the partners and should be responded to on behalf of all partners.

Once your response has been accepted by the ET – and sometimes even before – the ET will issue instructions on how the parties should prepare for a hearing. These are called ‘case management orders’. 

They will set a timetable for key steps such as sharing relevant documents (‘disclosure’) and drafting witness statements for the hearing. 

To allow time for these tasks to be completed, the final hearing (the ‘liability hearing’) will often be listed to take place in six to 12 months’ time. 

First published in Independent Practitioner Today in February 2022.