Employment tribunal defence – Preparing your case as an employer

Employment tribunal defence is a critical responsibility for employers facing claims from current or former staff. Whether you’re defending against allegations of unfair dismissal, discrimination, or unpaid wages, the way you prepare your case can make a significant difference. For tailored legal advice and representation, visit our Business Employment Law service page.

In England and Wales, employment tribunals provide a forum for resolving disputes between employers and employees. While the process is designed to be accessible and impartial, employers must follow strict procedures and timelines to avoid costly judgments. A well-prepared employment tribunal defence not only protects your business reputation but can also mitigate financial exposure.

Understanding employment tribunals

Employment tribunals are judicial bodies that hear cases involving workplace disputes. These include claims such as:

• Unfair dismissal.
• Constructive dismissal.
• Discrimination (age, gender, race, disability, etc.).
• Wage disputes and unlawful deductions.
• Redundancy issues.

Most tribunal cases are governed by the Employment Tribunals Rules of Procedure 2013 and associated legislation such as the Employment Rights Act 1996 and Equality Act 2010.

When to begin preparing your employment tribunal defence

Once an employee submits a claim (known as an ET1 form), the clock starts ticking. Employers typically have 28 days from the date they are sent the claim from the tribunal to submit a response using the ET3 form. Missing this deadline can result in a default judgment.

It’s critical to begin preparing your employment tribunal defence as soon as you receive notice of a claim. Early preparation allows time to gather documentation, assess risk, and consult with legal advisors.

Key steps in preparing a strong defence

1. Review the claim in detail: Understand the nature of the allegations. Identify the key legal points and timeline of events.
2. Gather evidence: Collect contracts, emails, personnel records, disciplinary documentation, and policies relevant to the case.
3. Interview witnesses: Speak with relevant managers or HR personnel who may have insight into the matter.
4. Draft a clear ET3 response: Provide a factual, concise and legally coherent reply to the claim.
5. Identify legal grounds: Highlight reasons for dismissal or actions taken, supported by law (e.g. gross misconduct, performance issues).
6. Assess settlement opportunities: Consider ACAS Early Conciliation or pre-hearing settlements to avoid litigation risk.

Legal representation is recommended, especially in complex cases involving discrimination or whistleblowing.

Common defence strategies in employment tribunal cases

Employers can use a variety of legitimate defences depending on the claim type:

• Fair process: Demonstrating that disciplinary or redundancy processes were followed lawfully.
• Reasonable employer test: Arguing that your actions were within the range of responses of a reasonable employer.
• Genuine redundancy: Showing the business need for workforce reduction and fair selection criteria.
• No unlawful discrimination: Set out your factual version of events to show there was no discrimination. Each type of discrimination has different defences that may be raised, so you should consult with your legal team on this.

These defences must be backed by evidence and applied consistently across your organisation.

Legal obligations and timelines

Employers have specific obligations under employment law when facing tribunal claims including:

• Respond to the claim within 28 days via ET3 form.
• Cooperate with ACAS during Early Conciliation.
• Disclose all relevant documents by the tribunal deadline.
• Submit witness statements on time.

Failure to comply with these requirements can result in adverse rulings or the employer’s defence being struck out.

Case scenario: Defending an Unfair Dismissal Claim

A retail employer faced an unfair dismissal claim from a former employee terminated for repeated lateness. The employer had documented five formal warnings and had followed a progressive disciplinary process. The employee alleged procedural unfairness.

At tribunal, the employer presented detailed records, copies of warnings, timekeeping logs, and witness statements from line managers. The tribunal found the dismissal to be fair and the process lawful. The employer’s thorough documentation and early legal preparation played a decisive role in the positive outcome.

Expert legal tips for employers

Solicitors experienced in employment tribunal defence often recommend the following:

• Document everything – informal warnings, meetings, and policy updates.
• Stick to your policies – deviation can appear discriminatory or unfair.
• Be honest in your ET3 – avoid misleading statements.
• Prepare your witnesses early – tribunal hearings can be daunting without preparation.

Having a structured internal process helps demonstrate that decisions were lawful and justified.

Costs and risks of employment tribunal claims

While there is no tribunal fee for claimants since 2017, defending a case can cost employers significantly in time, legal fees, and management resources.

Potential risks include:

• Compensation awards for unfair dismissal (up to £115,115 or 52 weeks’ pay in 2025).
• Reinstatement or re-engagement orders.
• Legal costs in exceptional cases (e.g. vexatious claims).
• Damage to business reputation and staff morale.

Proactive legal preparation and settlement where appropriate can limit these risks.

Benefits of engaging a legal team early

Why instruct a solicitor for your tribunal defence?

• They can assess the legal strength of your position objectively.
• Ensure your ET3 and evidence comply with tribunal rules.
• Negotiate favourable settlements when appropriate.
• Represent you at preliminary and final hearings.

Working with experienced employment law solicitors can reduce stress and improve your chances of a favourable outcome.

Our Employment team can help you and your organisation manage your legal obligations as an employer with expert advice and representation when you need it. Our Employment Law specialists are available to support you and your business through a range of employment matters, relating to the hire and performance of your employees, as well as grievance management. We can help you develop employee policies, handbooks, and documentation that can help ensure that you comply with accepted codes of practice and are protected from potential liability. In the event of any disciplinary and grievance procedures, or litigation, we can provide high quality legal advice and representation. Contact us for more information.

FAQs

What is an employment tribunal defence?

Employment tribunal defence is the legal process by which an employer responds to a claim made by an employee, presenting evidence and arguments to refute the allegations.

How long do I have to respond to a tribunal claim?

You have 28 calendar days from the date the tribunal sends you the claim to submit your ET3 response form.

What happens if I don’t respond to a tribunal claim?

If you don’t submit your response in time, the tribunal may issue a default judgment in favour of the employee without hearing your defence.

Can I represent myself at a tribunal?

Yes, but it’s generally advisable to have legal representation, especially in complex cases involving discrimination, whistleblowing, or multiple claims.

How much compensation could an employee be awarded?

This depends on the type of claim. In unfair dismissal cases, the basic award plus the compensatory award could total over £115,000 as of 2025.

Is it possible to settle a tribunal claim before the hearing?

Yes. Many cases settle before reaching a hearing, often through ACAS Early Conciliation or private negotiation.

What evidence is most useful in defending a claim?

Useful evidence includes:

• Written warnings and disciplinary records.
• Employee contracts and policies.
• Email correspondence and meeting notes.
• Timekeeping and performance records.

Can I claim costs if I win the case?

Tribunals rarely award costs, but they can in cases where the claimant has acted unreasonably or brought a vexatious claim.

This article was produced on the 17th November 2025 for information purposes only and should not be construed or relied upon as specific legal advice.