ET3 Form: Respond to a Tribunal Claim

Defending a claim before an employment tribunal can be a daunting and challenging prospect for employers. To maximise the prospects of a successful defence against a tribunal claim, you will need to prepare thoroughly and complete all the necessary paperwork on time.

The following guide for employers sets out the tribunal claims process and how to complete the ET3 form when responding to a workplace claim.

 

What is Form ET3?

You can be taken to an employment tribunal by an existing or former employee, or even by a job applicant or trade union, over various issues. This could be anything from a pay dispute to allegations of unfair dismissal or unlawful discrimination but, in all such cases, the claimant will issue their claim using Form ET1 (the claim form). This is the prescribed form in which a claimant must set out the basis of their complaint against the employer.

Equally, in response to the ET1, you must complete and file Form ET3 (the response form). This is the form in which an employer must set out their defence to the claim(s) made against them, where this form is again specifically designed for this purpose.

 

When is Form ET3 used?

Form ET3 is used only once the claimant has formally lodged their ET1 claim form, where the employer must use the ET3 to respond to the matters alleged in that form. However, prior to this stage in the claims process, before the claimant has even issued a claim, they will first be required to complete an Early Conciliation Notification form. This is an online form to notify the Advisory, Conciliation and Arbitration Service (ACAS) of their intention to issue tribunal proceedings and if they would like to engage in early conciliation.

In circumstances where the claimant has indicated a willingness to participate in the early conciliation process, you will also be asked if you would like to attempt to resolve your dispute in this way. This is not a mandatory requirement, where both parties must agree to participate before early conciliation can proceed. However, this is a free of-charge and confidential dispute resolution procedure designed to facilitate settlement.

It is only once a claim has been submitted, either where agreement could not be reached to engage in early conciliation or any attempts to resolve the dispute have failed, that the tribunal will send you a response pack. This will include a copy of the claimant’s ET1, and provide you with a copy of an ET3 for you or any legal representative to complete.

 

What information do you need to provide in the ET3?

When completing the ET3, you will be asked to provide a number of details relating to the claimant and their employment, as well as your organisation and any legal representative who may be acting on your behalf. In cases where someone is representing you, the tribunal will only contact your representative moving forward and not you.

Most importantly, however, you must summarise your response to the claim(s) made against you, and even though you will be able to submit detailed witness statements and supporting documentation to substantiate what you want to say at a later date, your initial response on the ET3 will form the foundation of your defence. This means that if you disagree with what the claimant has alleged against you in their ET1, you must carefully consider what you want to say, and the legal and/or factual basis upon which you will seek to defend the matter, indicating at section 6 of the ET3 that you wish to defend the claim.

Additionally, if a claimant is no longer employed by you, they may make a claim for breach of contract. In certain circumstances, this entitles you to make an employer’s contract claim, although any such employer’s contract claim must be included in the ET3 form.

 

How long do you have to file Form ET3?

When completing Form ET3, it is important to bear in mind the time limits within which any defence must be submitted, together with the consequences of failing to file in time.

You will usually have 28 days in which to file a defence from being sent the issued claim, where your response pack should include an ET2 form (notice of claim) advising you of the last date for filing your defence. It is your responsibility to respond to the claim within 28 days from the date that the tribunal sent you a copy of the claim form. You can respond to the claim in a number of different ways, including by filling out and returning the response pack you are sent, submitting an online ET3 response form, or by downloading and filling in the response form and sending it to the tribunal office dealing with the case.

You may be able to ask the tribunal for more time to respond if it is not possible for you to fill in the ET3 form within the prescribed time, for example, if you need information from a key witness who is currently absent from work on either annual or sick leave. However, you must request an extension in writing as soon as possible, and within the 28-day timeframe provided, setting out full reasons why you are asking for additional time. If your request is not approved, you must still submit your completed ET3 within the original timeframe.

 

What if you file Form ET3 late or make a mistake?

If you fail to file Form ET3, or you are late in doing so, the tribunal may make a decision against you without a hearing. Known as entering default judgment, this is where a decision is made in the claimant’s favour without you being given any further opportunity by the tribunal to defend the allegations made against you. This means, for example, that if the claim is for unfair dismissal, you will be found to have unfairly dismissed the claimant without any further consideration of what actually happened or the issues involved.

Equally, if you need more time to file your ET3 but you do not apply to extend the time limit within 28 days, the claim is likely to be treated by the tribunal as one to which no defence has been submitted and judgment may again be entered against you.

If a claim is made against you, it is therefore imperative that you deal with the matter promptly, otherwise risk being found liable for allegations that you could have defended. It is only in circumstances where you respond in time, and where you have indicated that you wish to defend all or part of the claim, that the matter will proceed as a disputed case.

If you have made a mistake in completing Form ET3, you will be able to make an application for an amendment. This can be made at any time during tribunal proceedings although, the later you make the request, the less likely it is that the tribunal will allow it.

 

How much does it cost to file Form ET3?

There is no cost to either party in filing the claim (Form ET1) or response to the claim (Form ET3). You will also not usually be ordered to pay any costs incurred by the claimant, even if their claim is successful. However, the tribunal can make an order for costs or preparation time if the view is taken that you or your representative have behaved abusively, disruptively or unreasonably in the way that you have conducted your case, or if it thinks that your defence to the claim was so weak that it should not have been pursued.

It is therefore important to ensure that any defence set out in your ET3 is reasonable, true to the best of your knowledge and belief, and can be supported by evidence in due course.

 

After filing Form ET3

Once your ET3 form has been received by the employment tribunal, you can expect a response from them within 5 working days, letting you know the next steps of the claims process. At this stage, the 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 of the matters in dispute.

If the case is complex, a preliminary hearing may be necessary to help identify and narrow the issues involved, or to determine a substantive issue in advance of a final hearing, such as whether the claimant is disabled in the context of a discrimination claim. It can also be used to help the tribunal to decide case management directions and a timetable for trial. The length of any final hearing will depend on the issues involved and the number of witnesses to be called, but can take anything between half a day and several weeks.

Once a case management order has been put in place, either where standard directions are issued by the tribunal or following a preliminary hearing, you must comply with this order by disclosing documents and exchanging witness statements in accordance with the timescales provided. You must also prepare copies of documents you will be relying on at the final hearing and arrange in advance for your witnesses to attend to give evidence.

It remains open to you to attempt 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. 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 or their representatives, 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.

If the employment tribunal upholds the claimant’s case, the tribunal will go on to consider what award to make and calculate what should have been paid if the breach of a claimant’s rights had not occurred. In some cases, awards can run into tens of thousands of pounds. It is therefore essential that you follow the best practice tips set out below, where mistakes made in the early stages of defending a claim can adversely affect the outcome.

 

Form ET3 best practice for employers

The best way to respond to an employment tribunal claim will depend on the nature of the workplace dispute and the allegations made against you, although there are various best practice procedural tips that should be followed when completing Form ET3, including:

Always respond promptly, within the 28-day time limit provided. 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.

If additional time is needed to respond to the claim, you must ensure that an application is made to the tribunal for extra time within the 28 days permitted to respond, providing a detailed explanation in support of that application.

If your response to the claim within Form ET3 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. As such, you must ensure that you complete all questions in the ET3 marked with an asterisk.

When completing the ET3, there are various pieces of key information that you will need, including: your case number, as set out in your response pack; details of the claimant’s employment, including start and end dates, hours of work and any period of notice; details of the claimant’s pay and benefits, both before and after tax; any ACAS early conciliation details, such as the certificate number; a description of your response to the claim, including the dates and people involved; and details of any legal representative. When completing your ET3 online, your information will not be saved if you spend longer than one hour on a single page, so you will need these details to hand in advance.

Seek expert legal advice as soon as possible to help identify the best basis upon which to defend a claim. Form ET3 is a key legal document which forms the foundation of your defence and, even though this can be amended, it is preferable to accurately set out your defence from the outset with the advice and assistance of an employment specialist. You may even want to take advice prior to embarking on early conciliation, in this way helping you to find a sensible basis upon which to settle any dispute without recourse to tribunal proceedings and to help preserve any ongoing employer-employee relationship.

 

Need assistance?

For specialist advice to resolve workplace disputes or for support with managing a tribunal claim, contact us.

 

ET3 Form FAQs

What is an ET3?

The ET3 is a form for employers to complete in response to a tribunal claim issued against them by a job applicant or employee. The ET3 (the response form) will be filed in response to the ET1 (the claim form).

What is the time limit for ET3?

Once the claimant has submitted their claim using Form ET1, the employer will have up to 28 days to respond from the date the tribunal sent a copy of that form. The employer will need to respond using Form ET3.

Can an ET3 be amended?

If you have made a mistake in completing Form ET3, you will need to apply to the employment tribunal for an amendment where, the sooner this request is made, the more likely it is that the tribunal will allow it.

What are the chances of winning an employment tribunal?

The chances of winning an employment tribunal case will all depend on the nature of the workplace dispute and the circumstances involved, although an employer who fails to respond to the claim may automatically have default judgement entered against them.

Last updated: 4 January 2024