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, claiments have to pay an up-front fee to lodge a claim with further charges payable if the case goes ahead. And from 6 May 2014 Early Conciliation via Acas will be mandatory for all cases before they can proceed to an Employment 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.
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.
If you are notified of 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. It is not too late to try to negotiate an agreement. You might try to do this informally, use the Acas conciliation service or negotiate a settlement agreement (formerly a known as a compromise agreement) through lawyers. Negotiation is often a more cost-effective approach than defending a tribunal case, even if you think you are in the right.
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.