SUMMARY: What do you do when a tribunal claim is brewing…. Fight or Flight?
Whilst the number of tribunal claims are down, claims are still happening; unfair dismissal claims still prevail but often more complex issues such as discrimination and whistleblowing are involved.
Being on the receiving end of a tribunal claim can feel acutely painful from both a time and costs perspective. The following are a few simple do’s and don’ts to help manage a dispute which is brewing.
DO consider all the options for dealing with a dispute or a tribunal claim.
- Acas Early Conciliation
Before a claim can be started an employee must contact Acas; Acas will then establish if the employee and employer can resolve the dispute without the tribunal’s intervention. Neither party has to participate in the process and if settlement cannot be reached, the employee is then free to claim.
Even if there is no interest in settlement, this process may serve as a reconnaissance exercise to understand more about the employee’s complaint in preparation for defending any subsequent claim.
- Defend the case
Some employers may prefer not to shy away from the gaze of the tribunal because the complaint requires a robust response. For example:
- there is no case to answer;
- the employee’s settlement expectations are unrealistic; or
- there may be important financial and commercial considerations. Disabusing staff of a settlement culture may be one reason. Broader issues may also be at stake, which relate to pay, hours and holidays.
- Judicial Mediation
Mediation has the advantage of taking place in a less formal setting in comparison with a full tribunal hearing. The mediator, an employment judge, will work with the parties on a confidential and without prejudice basis to explore if there is a way of resolving the dispute. The parties are free to discuss their differences and consider the options for resolving the dispute, without the fear of their discussions being repeated if the mediation fails.
Agreement can be reached on matters which a tribunal would not be able to address. For example, the employee leaving, an apology or a reference being issued, or the employee being provided with assistance to find another job.
From an employer’s perspective a satisfactory commercial outcome, without having to concede its position can often be achieved.
- Settle the case before the hearing
Once a tribunal claim has been issued, the Acas conciliation service will still be available to consider with the parties whether there is a solution. Settlement agreements can also be used.
DON’T ignore a tribunal claim once received.
Employers only have 28 days from the date when the claim is sent to respond to the tribunal setting out why the claim is disputed. A response will usually be rejected if received after the expiry of the 28-day time limit. Possible consequences are that a judgment could be issued without the employer being able to defend its position. This could be costly as compensation for discrimination claims is uncapped, and the maximum compensatory award for unfair dismissal from 6 April 2016 is the lower of £78,962, or one year’s pay.
Until and unless settlement is properly concluded, a response must always be filed.
DO consider ways to limit an employee’s opportunity to bring a claim in the first place.
Effective ways to reduce the risk include:
- having legally compliant contracts of employment and policies and procedures;
- introducing a robust appraisal system and ensuring current job descriptions exist;
- communicating to staff the expected workplace standard of behaviour to reduce the risk of harassment and discrimination claims; and
- dealing promptly and fairly with grievances and whistleblowing complaints.
DON’T forget …..
…. if a dispute arises, a sound strategy, which acknowledges the needs of your organisation and the merits of the complaint, will go a long way towards finding the right solution, whether that be a hard fight in the tribunal or a quick exit via the settlement route.
If you would like to identify the right strategy for your employment disputes, please contact a member of our Employment Law team:
+44 (0) 808 172 93 22
This update is for general guidance only and does not constitute definitive advice.