Thu, Dec

Employment Tribunals and how to avoid them

Legal Eagle

Employment Tribunals and how to avoid them
By Anne-Marie Boyle of Menzies Law 

In the last issue of Image Reports we focused on what to do should an Employment Tribunal Claim (ET1) land on your desk. Here we share the steps you can take to minimise the chances of a claim from one of your employees. Given that claims are up by nearly 25% these are actions worth considering.   

At Menzies Law we have represented all sorts of companies. At one end of the scale is the ‘exploiter’, looking to get away with as much as possible and invariably having at least one tribunal claim ‘on the go’ at any one time, and tending to require regular advice on grievances, sickness absence and disciplinary hearings.

At the other end of the scale are those that really work to improve their employee engagement. They set up employee forums, listen to and act on feedback, and generally make their employees feel valued. In our experience, these companies almost never receive tribunal claims.

Then there are those who sit somewhere in between - those businesses that sometimes find an ET1 claim form on their desk, but not frequently and probably with no recognisable pattern to them.

Having acted for both employers and employees, giving your employees ‘meaningful’ grievance and disciplinary experiences is a great way of avoiding claims. The aggrieved employee wants to feel like their complaint has been taken seriously. If they feel that their concerns have been listened to and properly investigated the likelihood of them then bringing a tribunal claim is diminished. Conversely, those who feel like their concerns have been brushed under the carpet or ignored are far more likely to bring a tribunal claim - typically a constructive dismissal claim, sometimes with a discrimination claim too.

The risk of a claim therefore has a close connection with whether your employees feel they’ve been ‘heard’ and whether they have experienced ‘procedural justice’ in the workplace.

Consider the following scenario: your ex-employee is trying to persuade an employment lawyer to take on their claim of unfair dismissal.  A good lawyer will be assessing whether the employee has a better than 50% chance of success in a tribunal.

If, as the employer, you conducted a comprehensive investigation, sent the employee all the evidence in good time in advance of the disciplinary hearing, allowed them to fully explain their version of events, took the time to consider your decision (e.g. never dismiss in the disciplinary hearing without at least taking an adjournment to consider everything) and finally, you offered a right of appeal to someone more senior, then how confident would the claimant lawyer be about taking the case on?   

We would not be advising that employee that they had a strong case.  They might feel aggrieved but our legal view would be that the employer had done all the right things and the chance of a successful claim was definitely less than 50%.

Taking legal advice at an early stage is worth doing - it will ensure that you head off on the right path to minimise the chance of a successful claim.