Employment tribunal claims from discontented employees are a worrying prospect for any employer. An employment tribunal case is a no-win situation - even if the claim is completely unjustified.
Under new rules, claimants have to pay an up-front fee to lodge a claim with further charges payable if the case goes ahead. Claimants must also notify Acas before they can proceed with their claim. An Acas conciliator will contact the claimant to offer conciliation. Conciliation is free, voluntary, confidential and impartial.
The conciliator will talk through the dispute with both the employer and employee with a view to resolving the dispute. The process may last for up to one month but can be extended for another 14 days if both parties agree.
Acas figures suggest that three quarters of the cases referred to conciliation are resolved without the claim escalating to an employment tribunal. Any agreement reached through conciliation is legally binding. Where conciliation fails to resolve the disagreement, Acas will issue a certificate and reference number to allow the claimant to proceed with the claim to tribunal.
As the employer you almost always end up paying your own costs. At worst, you face the disruption and costs of the employment tribunal case plus the risk of a substantial award against you.
Avoiding employment tribunal claims
The best way to avoid employment tribunal claims is to avoid employment disputes. You need to treat employees fairly, making sure that you live up to your side of the contract and avoid discrimination. You also need to ensure that you comply with basic legal requirements in terms of working hours, health and safety, flexible working and so on.
Even so, problems are likely to arise: for example, when employees need to be disciplined, dismissed or made redundant. Proper disciplinary and grievance procedures are essential, helping you resolve problems before they reach an employment tribunal. If a case does reach the employment tribunal, any award against you may be increased if you failed to follow fair procedures.
Aim for a culture of open communication to help avoid employment tribunal claims. Employees who can raise problems informally with their managers, or who trust that any grievance will get a fair hearing internally, are less likely to complain to an employment tribunal. Difficult changes, like redundancies, can be less confrontational if employees are properly consulted and involved.
Responding to an employment tribunal claim
If early conciliation fails and a dispute escalates to an employment tribunal claim, your first step is to assess the merits of the case. There may be technical reasons why the claim should not succeed: for example, if the claim is not made within three months. If an employment tribunal claim is invalid or very weak, you can apply for a pre-hearing claim to ask for it to be thrown out.
If there is a case to answer, you need to decide your approach. If you do decide to defend an employment tribunal claim, you’ll need to get together all the evidence you need and prepare your case. The employment tribunal procedures then include exchanging information with the other side before the case itself begins.
Employment tribunal cases are less formal than court cases. You can defend an employment tribunal case yourself or be represented by an employment lawyer. Your best option may be to ask an employment specialist to carry out an initial review. This will help you assess the risks and decide what approach to take.
August 2017 update: Following a ruling by the Supreme Court on 26 July 2017 there is no longer a requirement to pay a fee to make a claim to the Employment Tribunal or the Employment Appeals Tribunal. Anyone who has previously paid fees to the Employment Tribunals or Employment Appeals Tribunal is entitled to be reimbursed by the government. More information will be made available on the GOV.UK website.
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