Unless an extension of time is granted by the Employment Tribunal, the Respondent or their solicitors must submit their ET3 within 28 days of the Tribunal dispatching the ET1 to them. The Tribunal should tell a Respondent when the date for submitting the ET3 is. The Tribunal Rules of Procedure 2013 specify what should be contained in the ET3, at rule 17 here.
The ET3 form will specify, by using asterisks (*), which boxes must be completed, such as the Respondent’s name, address, whether they intend to defend the claim and, if so, the facts on which they will rely.
The other information requested on the form, such as whether they agree with the details given by the Claimant in respect of ACAS Early Conciliation, dates of employment of the Claimant and hours and earnings, is optional but will be helpful if completed.
If a Respondent or their solicitors fails to submit an ET3 in time, and/or any application for an extension of time is not made or not allowed, then the Claimant would usually win the claim, with its value to be determined. A Tribunal Judge would then decide what case management orders to make, all of which would depend upon the nature of the claim brought by the Claimant.
If a Claimant has brought a contractual claim against a Respondent, and if the Respondent is of the view that they have a claim in contract against the Claimant, then the Respondent can make a counterclaim in their ET3. If a Respondent elects to bring a counterclaim, then the Claimant must respond to the counterclaim and is afforded 28 days in which to do so.
Once the ET3 has been sent to the Tribunal, the Tribunal will send a copy to the Claimant or to the Claimant’s solicitors. Usually, a Respondent solicitor will send a copy of the ET3 to the Claimant or to the Claimant’s solicitors when submitting the form to the tribunal.
Upon receiving the ET3, an Employment Tribunal Judge will consider the claim and the response. The Judge will decide whether to strike out any element of the claim or response and will make case management orders in order to provide a timetable for the claim. Where the case involves discrimination or whistleblowing, a Preliminary Hearing will be listed.
Most Respondent Solicitors will submit a Grounds of Resistance to accompany the ET3. A Grounds of Resistance usually reflects any Grounds of Claim submitted by the Claimant, responding to each point raised by the Claimant, as well as adding additional information.
An employer who is being sued in an Employment Tribunal and does not have sufficient funds to pay for a solicitor to do all the legal work is advised to instruct a specialist employment solicitor to provide a detailed ET3 and Grounds of Resistance so that the foundations of the defence are laid and that an Employment Tribunal Judge is more likely to provide more preferable case management orders.