Employment Tribunals – Avoiding Claims

Since the fees were abolished just over a year ago, there has been an increase in employment tribunal claims. No surprise there! Recent statistics released by ACAS on early conciliation, employment tribunal claims, and settlements make for interesting reading.

There are no winners where employment tribunal claims are concerned. For both parties they cause sleepless night, they are expensive, and the process can be scary.

There are 2 common questions I get asked by business owners: Will a claim always go to employment tribunal? and How can I stop my business being taken to a tribunal?

This article will answer both.

Will a claim always go to employment tribunal?

The answer is no, not always and quite often once a claim is lodged there is a fairly lengthy process before it gets to a tribunal.

The first thing that will happen is the ACAS Early Conciliation process. This is a mandatory mediation service offered to both parties for free, however, both parties need to agree to take part. This service attempts to find a resolution to the claim to prevent it going to a tribunal.

ACAS will mediate between both parties, however, as the employer it is recommended that at this point you seek some expert advice and help. Sometimes the resolution will take the form of a settlement agreement with payment or a COT3.

How can I stop my business being taken to a tribunal?

The simple answer is that you can’t. However, you can mitigate the risk of it happening. Remember staff with less than 2 years’ service cannot bring a claim of unfair dismissal against you. However, it is important to know that some rights, such as discrimination, can be brought regardless of their length of service – and this includes from existing, ex-employees and potential employees, i.e. during recruitment.

So how can you mitigate the risk?

1. Have clear employment policies, procedures or guidance and ensure you follow them consistently and fairly. Bending the rules for one person but not another is likely to land you in hot water! If you don’t have any employment policies, follow the ACAS’ code of practice on handling disciplinary and grievance issues.

2. Your contracts of employment are one of the most important documents you have in your business. Legally, every member of staff should have a contract and it should be kept up to date with any changes in conditions of employment (such as role, pay, hours etc), plus any changes to employment law. Where I am asked to resolve problems for new clients, I often find disputes arise where contracts don’t exist.

Employment tribunals are rarely impressed where an employer has no contracts or any form of guidance in place for their staff. Having both, puts you in a much better position to defend any challenges.

3. Deal with issues promptly and without delay. Don’t confuse deal promptly with deal in haste! It will be much less stressful to resolve problems at an early stage. Have a culture whereby staff are not scared to raise concerns.

4. Document any meetings you have with staff either during the meeting or soon afterwards. If both parties have a copy and agree it is an accurate reflection of the meeting, it avoids disputes later on and can relied upon for evidence.

5. Train your managers and supervisors in how to manage their staff. This can range from how to hold difficult or sensitive conversations, dealing with disciplinary problems, handling grievances, dealing with issues of poor performance or poor attendance. As the business owner, you will still be liable in an employment tribunal for the actions of your managers.

6. Finally, small businesses usually don’t have, or need, in-house HR professionals. However, you can seek advice and support from an HR consultant. As an HR Consultant, I work with small businesses to ensure they have the essentials in place to support the business, help with any HR problems that may arise and help business owners plan HR for the future of their business.

Don’t underestimate the benefits of getting it right from the start. It can save business owners a lot of management time, cost to the business in terms of money and reputation, and sleepless nights further down the line, thus avoiding any claims.

I have only scratched the surface of a vast area. If you have any concerns or wish to talk through how to protect your business, please contact me.