Responding to an Employment Tribunal Claim

Receiving an Employment Tribunal claim does not mean the claimant is right, and it does not mean the business has lost. It does mean that a formal legal process has started and there is an important deadline to deal with.

The first job is not to write an emotional rebuttal to everything in the ET1. Confirm the deadline, establish what is actually being alleged, preserve the evidence and organise responsibility for the defence.

If professional support is going to be needed, bringing it in early can also avoid having to reconstruct the case after deadlines have started running.

What is an ET1?

An ET1 is the prescribed claim form used to start most Employment Tribunal proceedings. The person bringing the claim is known as the claimant. The business, organisation or individual against whom the claim is made is the respondent.

Once a claim has been accepted, the Employment Tribunal normally sends the respondent a copy of the ET1 together with information about responding.

The ET1 should identify the parties and set out the basis of the claimant’s case. Depending on the dispute, it might include allegations of unfair dismissal, discrimination, unlawful deductions from wages, breach of contract or several claims arising from the same events.

An ET1 is an allegation. The Tribunal has not decided that the allegations are true simply because the claim has been accepted.

Step 1 — Check the response deadline

This is the immediate procedural priority.

Under the current Employment Tribunal procedure, the respondent’s response must normally be received by the Tribunal within 28 days from the date the Tribunal sent the respondent a copy of the claim form. It is not calculated from the date a manager happens to open the email or the date the paperwork eventually reaches the right person internally.

As soon as the claim arrives, record:

• the Tribunal case number;
• the date shown on the Tribunal correspondence;
• the ET3 deadline;
• who owns the defence internally; and
• who is providing any external professional support.

Do not assume somebody else has diarised it.

If there is a genuine reason why the response cannot be completed in time, the respondent can apply in writing for an extension and must explain why it is required. If the application is made after the response deadline has expired, the current Rules also require a draft response to accompany the application, or an explanation of why that is not possible. An Employment Judge decides whether the extension will be granted. Do not assume that asking for more time stops the deadline or guarantees an extension.

If no response is accepted, the Tribunal can determine the claim without the employer being permitted to defend it in the normal way. A hearing may still sometimes be required, for example to determine remedy.

Step 2 — Read the claim properly

Before preparing the defence, work out exactly what case is being brought.

Start by separating five things:

1. The chronology — what events does the claimant say happened?
2. The allegations — what conduct is being complained about?
3. The legal claims — what rights does the claimant say were breached?
4. The remedy — what outcome or compensation is being sought?
5. The people involved — who made decisions, attended meetings or witnessed relevant events?

Several legal claims can arise from the same underlying facts. A dismissal, for example, might generate allegations concerning unfair dismissal, discrimination, notice pay or wages.

Where the dispute arose from termination of employment, the employer may also want to review its original decision-making and any dismissal advice for employers obtained at the time. If disciplinary action formed part of the background, the disciplinary procedure for employers may help identify where the original process and evidence need to be examined.

Do not simply deny every allegation because it appears in the ET1. Facts which are plainly correct can usually be admitted while genuinely disputed allegations are answered properly.

Step 3 — Preserve the evidence

Once Tribunal litigation exists, potentially relevant evidence needs to be protected.

That means ordinary deletion and retention routines may need to be suspended for material connected with the dispute. Relevant information should not disappear because a mailbox is cleared, a Teams account is removed, a mobile telephone is replaced or an employee leaves the business.

Depending on the claim, preserve material such as:

• contracts and contractual variations;
• relevant policies and procedures;
• letters and formal correspondence;
• emails;
• Teams, Slack, WhatsApp or other relevant messages;
• meeting notes and minutes;
• disciplinary and grievance documents;
• performance or capability records;
• absence records;
• payroll and benefits information;
• relevant calendar entries;
• management notes; and
• recordings or other digital material lawfully held by the business.

Preserving a document does not mean the document helps the employer.

That distinction matters. Employment Tribunal disclosure can require relevant documents to be shared whether they support or undermine a party’s position. Official Tribunal guidance expressly explains that the parties must disclose relevant documents even where those documents do not help their case.

Do not delete an unhelpful email. Do not rewrite a meeting note. Do not create a document retrospectively and present it as though it existed at the time.

Build the defence around the genuine historical record.

Step 4 — Establish the facts

The documents rarely tell the whole story.

Identify the people who were directly involved and establish what each of them remembers. Depending on the case, that could include the dismissing manager, investigating manager, appeal officer, line manager, HR adviser, witnesses to alleged conduct or people involved in a recruitment or redundancy decision.

Where somebody important has since left the business, consider contacting them early rather than assuming they will remain available months later.

The purpose at this stage is not to coach witnesses into a common version of events. It is to establish what happened and identify discrepancies while there is still time to investigate them.

A useful working chronology should distinguish between:

• facts supported by contemporaneous documents;
• facts supported mainly by witness recollection;
• matters which are genuinely disputed;
• points the employer can sensibly admit; and
• gaps in the evidence.

Weak documentation does not necessarily mean the underlying defence is weak. Equally, a confident manager’s recollection does not override contradictory contemporaneous evidence. Assess both.

Step 5 — Assess the claim

Once the factual position is clearer, assess the case rather than reacting to it.

Consider:

Legal merits. What claims have actually been pleaded and what will the claimant need to establish?

Factual evidence. Which version of events is best supported by documents and credible witnesses?

Process. Were appropriate procedures followed and, where relevant, what difference could any procedural shortcomings make?

Value. What financial remedy is realistically in issue if the claim succeeds?

Witnesses. Are important witnesses available, credible and willing to participate?

Management time. What will defending the proceedings require from the business?

Commercial considerations. Are there reputational, relationship or operational issues which affect the sensible strategy?

This is also where an employer should separate a poor process from an indefensible case. They are not always the same thing.

Step 6 — Prepare the ET3

The ET3 is the respondent’s formal response to the claim.

It can currently be submitted using the Employment Tribunal online response service or the prescribed ET3 form. The response needs to provide the required respondent information and state whether the claim is resisted.

Importantly, the Tribunal Rules were amended with effect from 2 March 2026 to strengthen the requirement for parties to state the grounds on which their case is brought or defended. A response should therefore set out the actual grounds relied upon, not merely say that the claim is denied.

The ET3 is an important pleading. It should be accurate, measured and consistent with the available evidence.

That does not mean attaching the entire document file or trying to write every witness statement at this stage. The response should establish the employer’s case clearly enough for the claimant and Tribunal to understand the basis on which the claim is resisted.

What should the ET3 contain?

The exact response will depend on the allegations, but a good defence normally identifies:

The employer’s factual position

Set out the relevant events clearly and in a logical order.

Matters which are admitted

There is usually no advantage in denying an incontrovertible fact simply because the claimant mentioned it.

Matters which are denied

Where an allegation is wrong, make the employer’s position clear and, where appropriate, explain what actually happened.

The legal defence

Address the legal claims which have genuinely been made rather than answering the ET1 only as a workplace complaint.

Relevant preliminary issues

Depending on the case, there may be questions concerning jurisdiction, limitation, employment status, the identity of the correct respondent or whether a particular legal complaint has been adequately pleaded.

The ET3 should be firm where the facts justify it, but not emotional. It is a formal statement of the employer’s defence, not correspondence with a disgruntled former employee.

If the business wants external help preparing and managing the response, Harrington Raine’s Employment Tribunal defence service is the appropriate commercial route.

What happens after the ET3?

If the Tribunal accepts the ET3, a copy is sent to the claimant and, in most cases, to Acas. The case then moves into case management and preparation for whatever issues still need to be determined.

The precise route varies considerably.

A relatively straightforward case may progress under written case management orders. A more complicated case may need one or more preliminary hearings.

Orders can deal with matters such as:

• identifying the issues;
• disclosure of documents;
• preparation of a hearing bundle;
• schedules of loss;
• witness evidence;
• applications by either party; and
• preparation for the final hearing.

Take every Tribunal order seriously. A party that needs a deadline varied should apply rather than simply miss it.

What is a preliminary hearing?

A preliminary hearing can be used to manage the proceedings or decide particular issues before the final hearing.

The current Tribunal Rules allow preliminary hearings to deal with case management, preliminary issues, strike-out applications, deposit orders and forms of alternative dispute resolution. Since March 2026 the Rules also expressly recognise dispute resolution appointments and judicial assessment alongside judicial mediation.

A preliminary hearing might therefore be used to:

• clarify exactly what claims and issues need deciding;
• set the timetable for preparing the case;
• determine a jurisdiction or time-limit issue;
• consider whether part of a case should be struck out;
• consider a deposit order; or
• explore resolution of the dispute.

Not every case needs one.

A Tribunal may strike out all or part of a claim or response on specified grounds, including where it has no reasonable prospect of success. But strike-out is a procedural power, not something an employer should assume will dispose of every weak-looking claim.

A deposit order is different. If a specific allegation or argument has little reasonable prospect of success, the Tribunal can require a deposit of up to £1,000 as a condition of continuing with it.

Disclosure and documents

Disclosure is one of the most important stages of Tribunal preparation.

Each party may be required to disclose relevant documents to the other, including documents which damage its own case. In England and Wales, the Tribunal’s current guidance describes the usual preparation sequence as disclosure of relevant documents, creation of a single indexed and paginated hearing bundle, and then exchange of witness statements.

This is why evidence preservation needs to start when the ET1 arrives rather than shortly before the hearing.

A document should not be withheld simply because it is embarrassing or contradicts part of the defence. Questions of relevance, privilege and disclosure can become technical, so take advice where necessary.

The eventual hearing bundle normally brings together the documents required by the Tribunal to determine the case. It is not an opportunity to bury the important evidence inside thousands of irrelevant pages.

Witness evidence

Identify important witnesses early, even though formal witness evidence is usually prepared later.

A witness should ideally be someone with direct knowledge of relevant events rather than somebody senior who knows little about what actually happened.

In England and Wales, where witness statements are ordered, they will normally stand as the witness’s evidence at the hearing and the witness can then be questioned. The position in Scotland differs: official HMCTS guidance states that witness statements are not normally used there unless ordered by an Employment Judge.

If a necessary witness is unwilling to attend voluntarily, the Tribunal can in appropriate circumstances be asked to issue a witness order.

Can the case still settle?

Yes.

The issue of an ET1 does not end the possibility of settlement.

Acas can continue conciliation during Tribunal proceedings up until judgment. Where agreement is reached through Acas, the terms can be recorded in a legally binding COT3.

For employers wanting more background on the pre-claim stage, see Acas Early Conciliation for employers.

A claim can also sometimes be resolved through other agreed arrangements. Where relevant, our guide to settlement agreements for employers explains that separate mechanism.

Settlement does not automatically mean the employer accepts liability.

The question should be commercial: is settlement better than continuing the defence?

Should the employer settle or defend?

Do not make a settlement offer simply because an ET1 has arrived.

Equally, do not refuse a commercially sensible settlement because management is angry that a claim has been brought.

Assess:

• prospects of success;
• likely financial exposure;
• the quality of the evidence;
• witness availability;
• management time;
• defence and advocacy cost;
• business disruption;
• reputational considerations; and
• the realistic cost of settlement.

Harrington Raine’s position is straightforward: defend first. Settle when it makes sense.

That means understand the claim and build the defence before deciding whether commercial settlement is the better outcome.

Settlement is a strategy — not a reflex.

What about legal costs?

Employment Tribunals do not normally operate on the same costs model as ordinary civil litigation.

Winning therefore does not automatically mean the claimant must pay the employer’s legal costs. Equally, losing does not automatically mean the employer pays all of the claimant’s legal costs.

Under the current Tribunal Rules, a Tribunal must consider a costs or preparation-time order in circumstances including where a party or representative has acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing or conducting proceedings, or where a claim or response had no reasonable prospect of success.

Costs should therefore form part of the litigation strategy, but an employer should not defend a claim on the assumption that all of its professional fees will be recovered if it wins.

Preparing for the final hearing

If the case does not settle or otherwise end beforehand, the final hearing determines whether the claim succeeds and, where necessary, the appropriate remedy.

By that stage the employer should understand:

• the issues the Tribunal is deciding;
• its factual and legal case;
• the hearing bundle;
• the important chronology;
• the witness statements where applicable;
• who is attending as a witness;
• the claimant’s schedule of loss and the employer’s response to it; and
• what evidence may be required on compensation or another remedy.

Depending on the claim, remedies can include compensation and, in some unfair-dismissal cases, reinstatement or re-engagement. Respondents should therefore be prepared to address remedy as well as liability where relevant.

Managing the Tribunal case as the named Tribunal representative is not the same thing as providing advocacy at the final hearing. Harrington Raine’s Employment Tribunal defence service and hearing advocacy are separate services; hearing advocacy can be arranged separately where required.

Common Tribunal defence mistakes

Several avoidable mistakes can materially weaken an employer’s position:

Missing the ET3 deadline

The most immediate risk. Diarise it as soon as the claim arrives.

Failing to preserve evidence

Do not wait until disclosure is ordered before protecting relevant records.

Responding emotionally

An ET3 should defend the legal claim, not continue the workplace dispute.

Denying facts which are obviously true

Unnecessary denials can damage credibility.

Failing to identify the actual legal claims

A persuasive explanation of why management thought an employee behaved badly is not automatically a legal defence to the claims pleaded.

Altering the historical record

Never backdate, rewrite or manufacture documents.

Ignoring damaging evidence

Unhelpful documents do not disappear because the employer would rather not rely on them.

Leaving witnesses until late

A former manager may be easy to contact now and impossible to locate shortly before the hearing.

Ignoring Tribunal orders

Manage every deadline centrally and apply promptly where a genuine variation is needed.

Assuming costs will be recovered

Costs orders are not the automatic consequence of winning.

Settling before assessing the claim

A claim should be evaluated before the employer decides what, if anything, it is worth paying to resolve.

Refusing sensible settlement for emotional reasons

Defending a strong position and spending money unnecessarily are not the same thing.

Frequently asked questions

Does an employer need a lawyer to submit an ET3?

No. An employer can respond itself and does not have to instruct a lawyer or professional representative. However, professional advice can be particularly valuable where the claim involves multiple causes of action, discrimination, whistleblowing, substantial compensation, complex evidence or important preliminary issues.

Can Harrington Raine become the employer’s Tribunal representative?

Yes, where instructed as part of the applicable service, Harrington Raine can become the respondent’s named Tribunal representative and manage the defence through the stages included within the service.

That should not be confused with advocacy at an Employment Tribunal hearing, which is available separately.

What happens if the ET3 deadline has already been missed?

Act immediately. A respondent can apply for an extension of time, but an extension is not automatic. Where the deadline has already passed, the current Rules require the application to include a draft response or explain why one cannot be supplied.

If a response has been formally rejected, there are also specific reconsideration provisions and short procedural deadlines which may apply. Professional advice should be taken promptly rather than assuming the late response can simply be corrected later.

What if the ET1 is vague?

Do not guess at allegations which have not been made. Identify what can reasonably be understood from the ET1, respond to the pleaded case and consider whether clarification, further information or Tribunal case management is required.

Should an employer investigate again after receiving the ET1?

Often, yes — in the sense of establishing the facts necessary to prepare the defence. That may involve reviewing the original records and speaking to relevant managers or witnesses.

It does not mean rewriting the original HR process or creating retrospective paperwork.

What is a schedule of loss?

It is the claimant’s calculation or explanation of the financial remedy they say they are seeking. The employer should analyse the figures rather than treating the amount claimed as the likely Tribunal award.

Check matters such as earnings, benefits, periods of loss, mitigation and the legal basis for each part of the claim.

Does the October 2026 change to Tribunal time limits give employers longer to file the ET3?

No.

The Employment Rights Act 2025 reforms increase the time limit for bringing many Employment Tribunal claims from three months to six months from 1 October 2026, subject to the applicable commencement and transitional rules. That is a change to claimant time limits. It does not replace the respondent’s current 28-day ET3 response period.

How long will an Employment Tribunal claim take?

There is no reliable universal timescale. It depends on the type of claim, complexity, number of issues, preliminary applications, hearing length and Tribunal capacity.

The better approach for the employer is to organise the case from the beginning so the Tribunal timetable does not control the business.

What should the employer do today after receiving an ET1?

Confirm the ET3 deadline. Preserve the evidence. Appoint somebody to own the case. ReEmployment Tribunal defencead the ET1 carefully. Identify the important documents and witnesses. Then assess the factual and legal position before preparing the response.

For wider practical guidance on managing workplace issues before they become litigation, browse our HR & Employment Law resources.