There are many risks involved in employing workers, but ask most employers what their biggest concerns are and the fear of employment tribunal claim will come quite high on the list. Even when employers do everything by the book, a scorned employee may bring a claim in the employment tribunal. Employment law and the tribunal process can seem intimidating, but below are a few tips to help employers through the experience:
Understand the system - An employee may bring a claim against an employer to an employment tribunal over a number of issues. In the last year, the highest proportion of claims brought in the employment tribunals have been related to working time (holiday, rest periods, etc), but there were also a significant number of claims regarding unfair dismissal, unauthorised deduction of wages, equal pay and breach of contract. Employees do not have to be represented to bring a claim, and many do act as litigants in person. Bringing a claim used to be free of charge, but fees were introduced last year which has seen a dramatic drop in the number of claims being raised. If an employee loses their claim, they will not get these fees back.
Consider mediation or settlement – Even a seemingly simple employment tribunal matter can become expensive and time consuming to defend. As the employer’s legal costs are only recoverable in limited circumstances even if they successfully defend the claim, it is often preferable from a purely commercial perspective to settle the claim rather than defend it. A new rule was introduced this year requiring an employee to tell the conciliation service Acas that they intended to bring a claim, and Acas would then offer the option of conciliation to the employer. If this is accepted, the parties will have one month to try to resolve their issues outside of a tribunal claim; if they do not settle, or they refuse to engage in conciliation, the employee will be allowed to submit their claim. However, mediation and/or settlement discussions can take place at any stage of an employment tribunal claim. If the parties can come to an agreement, they can enter into either a settlement agreement which would see the employee withdraw their claim and waive their rights to bring any further claims subject to receipt of a compensatory sum.
Take legal advice – Although representation is optional at an employment tribunal, employment law can be complex and there may be legal arguments to be considered in addition to any factual disputes. Unfair dismissal, breach of contract and discrimination claims in particular can be rather complex and give rise to potentially high damages; an employment solicitor will be able to advise on the factors that may avoid liability or reduce the sum to be paid to the employee.
Prepare your documents – As soon as a claim is received, an employer should begin gathering all documents relevant to the issues in the case, whether they support or harm their argument. This may include internal communications intended to be confidential, but only in certain circumstances will documents not be disclosable; again, having a solicitor involved will assist in ensuring compliance with the tribunal’s requirements. Witness statements may need to be prepared, and it is advisable to make a note of each witness’ recollection of events as soon as possible to ensure accuracy.
Know your rights. If you disagree with a tribunal decision you may be able to ask the tribunal to look at the case again or appeal to the Employment Appeal Tribunal. In order to be able to ask the tribunal to review the decision, you must have a good reason, for example that new evidence has turned up. You can also appeal to the Employment Appeal Tribunal if you think the employment tribunal made a legal mistake.
Remain calm and professional – Employment claims often include personal or emotive elements which may anger or upset the individuals referred to in the claim. Tribunals are interested in finding out the facts and the correct legal position, and it is therefore preferable to act in a professional and calm manner. This can be particularly difficult during cross-examination if you appear as a witness, so it is worth understanding the legal and factual basis for defending the claim rather than relying on your own view of justice in the case.
Prevention is better than cure – After going through the difficult process of an employment tribunal, whether it has been successfully defended or not, it is worth considering if anything could have been done differently to avoid it arising in the first place. It may be that certain practices or policies will need to be changed to stop the same issue occurring with other employees, or that management reporting lines and communication processes need to be reviewed. When issues do arise, it is better to try to deal with them at an early stage than face them at a potentially costly and time-consuming tribunal hearing.
This article was first published as part of our Employment Law Update - August 2014. Register above to receive our updates as soon as they are published, directly to your inbox!
This article is offered for general informational purposes only, and does not constitute legal advice. The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the views or opinions of Solomon Taylor & Shaw.