Employment Tribunals

Tackling tribunals

As you will probably be aware, employment tribunal fees were abolished in 2017, a huge change which saves claimants around £1200 for any employment tribunal which they bring against their employer. Unfortunately, this does mean that you as an employer are now at a much greater risk of having a tribunal brought against you and of course you would be liable for legal fees instead, regardless of the outcome.

This was certainly borne out when I recently attended the offices of Employment Tribunals in Edinburgh. I was absolutely astonished to see just how busy the offices now were, in fact I calculated that there was a seven-fold increase in the number of cases being heard compared to the numbers being heard prior to the abolition of fees taking place.

But don’t just take my word for it, since the fees were abolished there has definitely been a steep rise in the number of employment tribunal claims lodged. The latest Ministry of Justice official statistics, show that the number of receipts for single claims more than doubled when compared with the same period in 2017. Receipts for multiple claims more than quadrupled in the same period.

ACAS has also seen a 39% jump in the number of cases that have gone to an employment tribunal since fees were abolished and employment tribunal claims the conciliation service was involved with increased by more than 7,000 since the Supreme Court ruled it was unlawful to charge claimants up to £1,200 in tribunal fees.

Borders Employment Law are highly experienced in representing clients at employment tribunals and because of the changing landscape we would strongly encourage you to take action now which could save you a considerable amount of time and money in the future. As always, prevention is better than cure and having a robust set of employment policies in place and line manager training on key areas such as sickness absence and equality will go some way towards mitigating the risks.

However, help is at hand and we would recommend that you also consider taking the following steps.

  1. We can help you to make sure that everything is in order so that if you do get a tribunal brought against you, you are ready for it.
  2. If you do have a tribunal case brought against you, we can offer you full representation and protection at a low cost.
  3. As a UEL Member firm, we have exclusive access to an exclusive insurance policy which would not only pay for representation at a tribunal by myself as an experienced tribunal lawyer but could also cover you should an award be made against you.

I can’t emphasise enough what an exceptionally good product this is for employers, to make sure that you are fully compliant with the law and that if a case is brought against you, that you have the reassurance that expert representation is paid for as well as any award that might be made against you. Do give me a call and I can discuss the implications of an employment tribunal as well as introduce the considerable benefits of our specialist insurance policy to you.

Dealing with an Employment Tribunal

Employment Tribunals are an independent judicial body established to resolve disputes between employers and employees over employment rights. The tribunal will hear claims about employment matters such as unfair dismissal, discrimination, wages and redundancy payments.

Whilst Employment Tribunals are less formal than a court, almost all hearings are open to the public and evidence will be given under oath and they do need to be taken very seriously indeed. Although employees and employers can choose to follow an alternative dispute resolution procedure, some employee complaints are still heard at an employment tribunal. However, if you have carefully thought out employment procedures, and you follow them, you can prepare good evidence which will make it easy to defend your actions.
The current interpretation of employment law seems to be moving in favour of the employee and awards are increasing, it is therefore important to understand the system and the way employment tribunals operate.

Employment tribunal hearings usually take place before a legally qualified employment judge and two lay members, one nominated by an employers’ organisation and the other from a union or employees’ body.

When an employer receives an employment tribunal claim, it does need to act quickly and carefully so that it is in the best position to defend the claim, or to hopefully reach a fair settlement with the claimant, avoiding unnecessary costs.

Here are our key recommendations for employers responding to an employment tribunal claim:

Deal with the claim quickly
A tribunal claim is definitely not something that can be put aside to deal with later. Procedures should already be put in place within your organisation, so that if and when a tribunal claim form is received, it is immediately brought to the attention of the relevant personnel. The employer should decide who will have main responsibility for dealing with the claim and preparing their response. The employer’s response to the claim must arrive at the tribunal office within 28 days of the date on which it was sent out and whoever is responsible should ensure that the deadline and a timetable for responding is kept.

If the employer intends to seek legal advice, it is advisable that you do this as soon as possible after receiving the tribunal claim form.

Assessment of the claim
Claimants cannot submit a tribunal claim form without first having contacted the ACAS early conciliation service. But it is not compulsory for the parties to agree to take part in conciliation.

If the parties have gone through the conciliation process, the employer may have already had details of the claimant’s case and had the opportunity to assess its merits. There may be occasions where settling a claim might make economic sense and you should always keep that in mind.  It is important to get good advice early so contacting your legal representative should also be done as soon as possible. At Borders Employment Law, as members of UEL, we also have access to an Employers Liability Insurance product which only clients of UEL member firms can get access to and it is well worth considering this type of insurance.

Stay focussed on the issues
When responding to an employment tribunal claim, the employer should focus on the specific allegations and on the legal issues involved. It should respond to the case in detail as it may not be possible to introduce further information at a later stage.

Pay attention to detail
It is important that there are no inconsistencies between the form on which the employer submits its response and any evidence that it, or the claimant, might rely on. Whoever drafts the form must pay attention to details and ensure that all factual statements (eg who said what, to whom and when) are correct and supported by the evidence.

Be on time
The rules on time limits at the employment tribunal are strictly applied. The important thing is to remember that the form must be received at the tribunal office within the deadline, not just sent, so employers should not to leave it until the last minute.

As we have outlined above, before lodging an Employment Tribunal claim, Acas must be notified first and this can be done through Early Conciliation. An impartial Acas Conciliator will then attempt to help both parties to resolve their differences. Whilst these discussions are taking place the time limit for making a tribunal claim is then extended and the Early Conciliation period can take up to a month initially.

Experience shows that resolving a dispute through conciliation is definitely faster, cheaper and less stressful than going to a tribunal. However, in some cases Early Conciliation will not resolve the dispute and it will be brought to a close.

Whatever happens, it is important that you seek professional advice and help in relation to Employment Tribunals, whether that is ensuring you are fully prepared in advance of receiving a claim form or guiding you through and representing you during the actual tribunal process.

If you would like help or advice relating to an Employment Tribunal, then please don’t hesitate to get in touch with me.