- Date: Friday 25th September 2015
The thought of having to appear in front of an employment tribunal fills most employers with dread and the fear of the unknown often means that companies sign up to expensive insurance deals in order to avoid high solicitors fees and potential award payments. However the vast majority of organisations will never see a courtroom from the inside since early conciliation more often than not leads to a positive outcome.
Since the introduction of tribunal fees in 2013 we have seen a drop in claims in excess of 70%.
Unions argue that this is due to claimants now having to pay up to £1,200 in order to make a claim and that employers’ shortcomings therefore remain unpunished if the claimant cannot afford the initial costs. Following harsh criticism, tribunal fees are currently being reviewed and we are expecting the report from the Ministry of Justice later this year.
Regardless of this, employers should endeavour to avoid disputes by implementing basic requirements and following legislation and ACAS guidelines. Should the situation escalate, a number of stages give opportunity to negotiate a favourable outcome without necessarily involving the judicial system:
1. Internal Processes
These have to be exhausted in most cases. This means that, if you are dismissing an employee, they will have to complete the appeals process, giving you the opportunity to reconsider your decision, before filing a claim.
2. ACAS Conciliation
Before a claim is filed, employees are now required to contact ACAS and engage in conciliation. An assigned conciliator will contact the claimant’s employer, making them aware of the employee’s complaint and giving advice on how to handle the situation. ACAS are an independent service and will attempt to resolve conflict informally, whenever possible.
If the issue cannot be resolved and the individual decides to proceed to a claim, the employer will receive an ET1 form from the appropriate court. It is vitally important that this is form completed and returned within the stipulated period and it is probably a good idea to seek professional advice at this stage.
A solicitor will give an indication of success rates, should the claim against the employer progress and also help compile any documents needed to build the defence. Full disclosure to the legal representative is crucial at this stage since all evidence will be examined in depth at a later stage.
Now, a business decision has to be made. Even though the employer might feel that they have not done anything wrong, a simple breach of procedure could still lead to them losing the case. If the costs are high and success rates low, employers may at this point decide to offer a settlement out of court, in order to stop the process from progressing.
4. Preliminary Hearing
Preliminary Hearings are conducted via conference calls or in person with all parties and an employment judge. During this hearing, basic requirements of the claim are discussed (timeframes for submission, scope, employee status, jurisdiction and limitations). At this point, no evidence will be reviewed but the judge may make recommendations on areas of the claim that may be explored in more detail during a hearing.
Sometimes, a decision will be made at this stage not to progress the claim, due to it not being admissible. However, should the claim be accepted by the court, a Preliminary Hearing is a great opportunity for an early indication if a settlement would be advantageous.
Costs increase significantly once proceedings have started and therefore many claims are still settled within hours before the parties enter the courtroom. Although this process can be stressful and emotional, it is important for employers to remain calm and professional and trust their legal representatives to do their job.
Remember, prevention is better than cure. By making sound decisions that are fair and follow the appropriate process, claims can be avoided and relationships between employees and employers strengthened.
If you would like advice on how to improve your internal processes and communication, or if you require support with a difficult situation, please contact our Employment Law and HR ADVISOR team.