Form ET3 is an important document for employers facing an employment tribunal claim from an existing, former or even prospective employee.
For employers, it will be important to know how to respond using ET3 in way that is legally compliant with the claims process and ensures your organisation’s best interests are protected.
What is Form ET3?
To bring a claim before an employment tribunal, a claimant is required to lodge form ET1. This is the document in which the claimant will set out the basis of their claim against an employer. This could relate to workplace legal complaints such as pay disputes, dismissals or discrimination.
In response, the employer must use form ET3 to set out their defence to the claim, or claims, being brought against them in the tribunal.
Prior to issuing a claim, the Advisory, Conciliation and Arbitration Service (ACAS) will provide the parties with the opportunity to resolve their dispute through early conciliation, although this process is not mandatory.
Who uses Form ET3?
Once a claim has been submitted, where any attempts at early conciliation have failed, the tribunal will send the employer a ‘response pack’. This will include a copy of the ET1, and provide a copy of an ET3 for you to complete.
You can respond by filling out and returning the response pack you’re sent, by downloading and printing out the response form, or online. If you fail to respond to any claim made against you, either online or by post, the tribunal might decide the case in the claimant’s favour. This is called a default judgment.
If you are not submitting a response online, you will need to send it to the relevant employment tribunal address, retaining a copy for your own records. You should also send a copy to the claimant.
How do you complete the ET3 Form?
The ET3 form has a significant role in the claims process. This is where you will set out the summary of your defence, ie; your version of events, to any claim(s) made against you. You will need the following information to complete Form ET3:
- Your case number, contained in the letter sent by the tribunal
- Details of the claimant’s employment, including their start and end dates, hours of work and period of notice
Details of the claimant’s pay and benefits, before and after tax
- Any ACAS ‘early conciliation’ details, such as the certificate number
- A description of your response to the claim, including dates and the people involved
- Contact details of your legal representative
If you disagree with what the claimant has alleged against you in their ET1, you must indicate at section 6 of the ET3 that you wish to defend the claim. If your response does not contain the necessary information, including whether you want to defend all or part of the claim, it will be returned and the claim will be dealt with as if a response has not been received.
You must also ensure that you are clear about the basis upon which you seek to defend any claim. Even though you will be able to submit witness statements and documentation to substantiate what you want to say in more detail at a later date, your initial response on the ET3 will form the foundation of your defence.
Once the ET3 form has been received by the tribunal, you can expect a response within 5 working days, incjuding details of the next steps in the process.
What are the time limits for the ET3?
There is a time limit for responding to a claim in the employment tribunal of 28 days from the date the tribunal sent you a copy of the claimant’s claim form.
If you’re late or do not respond, the tribunal may make a decision against you without a hearing. You must, therefore, deal with the matter promptly, or risk a default judgment being entered against you. If the deadline for submitting your ET3 response to the claim is closer than 5 days, you should check with the relevant tribunal that it has been received before the time limit expires.
You can ask the tribunal to extend the time limit if it’s not possible for you to fill in the ET3 form within the prescribed time, for example, if you need information from an important witness who is currently absent from work on annual leave.
You must request an extension in writing as soon as possible, providing full reasons why you are asking for extra time. If you do not apply within the 28-day time limit, the claim is likely to be treated as one to which no defence has been submitted and judgment may be entered against you.
You should also not assume that you will be granted an extension, or that an extension has been agreed, unless you are notified in writing by the tribunal that your application for an extension of time has been approved.
What happens after submitting the ET3?
After submitting an ET3 form, a tribunal judge will decide, having considered the ET1 and ET3 together, whether or not the case requires a preliminary hearing.
The tribunal may issue a case management order, with standard directions, together with time limits for compliance. If, however, the case is complex, for example, involving allegations of unlawful discrimination, a preliminary hearing may be necessary. You should receive a letter from the tribunal notifying you of the date of this hearing and explaining in advance what will be discussed.
The preliminary hearing will help the tribunal to put in place a timetable for the exchange of evidence, including witness statements and documentation. In addition to setting case management directions, the tribunal will also set a date and timescale for the final hearing of the claim.
In some cases, the tribunal may use a preliminary hearing to help identify and narrow the issues involved, for example, whether certain elements of the claim are out of time, or by striking out parts of a claim or defence. The hearing could even be used to determine substantive issues in advance of a final hearing, such as whether the claimant is disabled in the context of a discrimination claim.
What can you expect at the final hearing?
Once a case management order has been put in place, either where standard directions are issued by the tribunal or following a preliminary hearing, the parties will need to comply with this order by disclosing documents and exchanging witness statements in accordance with the prescribed timetable.
You must also arrange in advance for your witnesses to attend the final hearing, and prepare copies of documents you will be relying on. This could include, for example, the claimant’s employment contract, pay slips or minutes of meetings.
It is open to the parties to settle a claim at any time during these preparatory stages, although the matter will proceed to a final hearing, as directed, if the matter cannot otherwise be resolved on mutually agreeable terms.
The length of the final hearing will depend on the issues involved and the number of witnesses to be called, taking anything between half a day and several weeks, although in most cases it will take between 1-3 days.
Having considered the claim and defence, as set out in the ET1 and ET3, supported by oral and written evidence from both sides, together with any submissions from the parties, the tribunal will make a final decision.
You may be informed of this decision on the day, although in some cases the tribunal will notify the parties in writing after the hearing has taken place.
What if the tribunal rules against my organisation?
If the claim is successful, the tribunal will decide what consequences will follow. In complex cases, the issue of remedies will be adjourned to another hearing.
Any remedies against you could include an order to pay the claimant an amount of compensation, including damages for loss of earnings. There can be limits to the amount of money a tribunal can award, although there is no limit in cases of discrimination. You may also be ordered to reinstate a claimant that has been dismissed, for example, following a finding by the tribunal of unfair dismissal.
In addition to any compensation, or other tribunal order, you may be ordered to pay the claimant’s expenses and to pay back any state benefits that the claimant has received while taking their case to the tribunal.
If the claim is unsuccessful, you will not usually be awarded any costs, although where the claimant has acted unreasonably or if their claim had no reasonable prospects of success, you may be entitled to claim back any legal expenses.
Prior to a claimant lodging their ET1 claim form with the employment tribunal, you will be notified by ACAS that an employee or former employee, or even a job applicant, wants to make a claim against you. ACAS will offer to work with you and the claimant to try to resolve the dispute through early conciliation, albeit subject to both parties agreeing to engage in this process.
This can often be a quick and cost effective way of resolving a dispute, as well as helping to preserve a positive employer-employee relationship in circumstances where the claimant continues to work for you. With the assistance of an expert legal advisor prior to the issue of a claim, you may be able to identify a suitable resolution to the matter without further action being taken.
In any case, securing early legal advice from an employment law specialist will be crucial in helping to resolve a potential claim on terms favourable to your organisation, and to maximise your prospects of successfully defending a claim where settlement cannot be reached on mutually agreeable terms.
As employment law specialists, we can assist if you have any queries relating to settlement agreements, ACAS early conciliation or workplace mediation. We can assist throughout the conciliation process and advise as to the terms of any settlement agreement that may be reached, or if the matter proceeds to tribunal, we can guide you through the claims process, including completion of the ET3, and provide you with expert representation at any preliminary and final hearing.
Speak to our experts today for advice.
Form ET3 FAQs
What is an ET3?
An ET3 is the form provided by an employer in response to an ET1 in the context of an employment tribunal claim. If a claim cannot be resolved on mutually agreeable terms, for example, through early conciliation, the claimant will go on to lodge an ET1 form, where the employer is required to set out its defence to that claim, ie; using the ET3 form.
What happens after ET3 form?
After the employer has submitted an ET3 form in response to the claimant’s ET1 form, the employment tribunal will either issue a case management order, with standard directions, providing a timetable for the exchange of evidence, or order a preliminary hearing to help the parties prepare the case for a final hearing.
How long does an employer have to respond to an ET1?
Once the claimant has submitted their claim using an ET1 form, the employer will have a period of 28 days within which to respond from the date the tribunal sent a copy of the ET1. The employer will need to respond by completing an ET3 form, setting out the basis of any defence to the claim.
How do I respond to a tribunal claim?
How an employer responds to a tribunal claim will depend on the nature of the allegations made. Even with cases of a similar legal nature, for example, claims for unfair dismissal or unlawful discrimination, the facts can vary significantly from case to case, so it is always best to seek expert legal advice to help identify the best basis upon which to defend a claim.
Last updated: 21 December 2022