Employment Tribunal (“ET”) claims from disgruntled employees can be a stressful prospect for most employers. An ET case is usually a no-win situation even if the claim is dismissed. This is mainly because as an employer you almost always have to pay your own costs. You may also face disruption to your business and potential damage to your reputation through bad publicity even if you win ("no smoke without fire"). You will also have to bear the costs incurred by the other side if you go through an ET case and lose with the ultimate risk of a substantial award of compensation against you.
Under current rules, claimants have to pay a fee up front to lodge a claim with further fees payable if the case actually goes ahead.
Claimants must also notify the conciliation service ACAS before they can proceed with their claim. An ACAS conciliator will then contact the claimant to explore whether or not the claim can be conciliated. Such conciliation is free and confidential.
The conciliator will discuss the case with both the employee and the employer with the objective of resolving the dispute so that the need for formal tribunal proceedings can hopefully be avoided.
These discussions should be dealt with fairly quickly and there is a normal time limit of one month for such conciliation to take place (although in certain cases there can also be a 14 days extension if both sides agree).
ACAS figures suggest that such conciliation works in that about 75% of the cases referred to conciliation are resolved without the claim escalating to the ET. It should also be noted that any agreement reached through ACAS conciliation is legally binding on the parties.
If the conciliation fails, then ACAS will issue a certificate and a reference number to allow a claimant to proceed with the claim before the ET.
Avoiding ET claims
For an employer, the best way to avoid an ET claim is to avoid (or at least minimise) workplace disputes. Key steps to achieving this are to value employees and treat them fairly and with respect, avoid discrimination, create and maintain a safe working environment, adhere to legal requirements on matters such as flexible working, consult properly on changes and keep formal and informal channels of communication open whether through unions or groups of workers so that issues and grievances can be dealt with effectively as soon as they arise.
However, even the best employers who follow all these steps can still face ET claims simply by failing to adopt fair procedures when carrying out processes such as disciplining or dismissing employees.
Responding to ET claims
There are a number of steps you should take as an employer facing an ET claim:
Assess the merits of the case. Is it out of time? (usually a claim should be brought within 3 months). Is it such a weak claim that it is worth asking for a pre-hearing review to have it thrown out?
If there is a proper case, then decide your strategy. You will need to obtain evidence to help defend the claim. Such material will then be exchanged with the other side before the case itself begins. Make sure any notes are contemporaneous and that full record are kept of meetings and internal hearings;
Who do you need to represent you? Tribunals are less formal than courts so you may be able or wish to use your own staff. However, for any complex matters you should at least seek advice from specialist employment lawyers such as the ones here at LincsLaw. Even if at the end of the day we do not act for you in the tribunal, we can guide you as to the best way to defend successfully a particular ET claim.
You can contact us either by telephone on 01522 539501 or by visiting our website at http://www.lincslaw.co.uk/services/employers/defending-employment-tribunal-claims