Preparing your organisation for an employment tribunal post Covid

With the backlog of employment tribunal claims now at a 10-year high, Chris Boyle outlines how businesses of all sizes can counteract a claim 

Employment tribunals in the UK have seen significant change in recent years, as claims have become increasingly straightforward for an employee to file, but much more challenging to defend against as a business. 

The scrapping of fees in 2017, a web-based claims system and now the introduction of video hearings have all played a part. And now, furlough has brought a new dimension to employment law, and is already creating a new wave of disputes that will add to the growing case load.

Employment tribunals can be daunting. Not only do businesses risk a significant compensation cost, but their reputation is also on the line. If handled poorly, employment tribunals can disenfranchise employees, make future recruitment more challenging and put off current and prospective clients.

How can tribunals be avoided?

The best way to counteract an employment tribunal is to avoid any disputes arising in the first place. The pandemic has brought with it a lot of change to business structures and ways of working, however, this is no excuse for poor practice. Regardless of circumstance, businesses must remain consistent and champion the central principles of fairness and reasonableness in everything they do. 

In the unfortunate event that a dismissal is required, such as redundancy, this must be approached carefully with a full consultation and fair selection process followed. Just because an employee has been furloughed or at the business for a shorter time period, this does not necessarily mean they automatically qualify for redundancy.

Although the past 12 months have been challenging, with many businesses having to make difficult decisions in regard to their employees, this does not excuse poor practice. Ultimately, cutting corners will lead to financial and reputational damages that would otherwise have been totally avoidable. 

Whether you are facing an employment tribunal claim or not, now is an ideal time to re-evaluate employment practises throughout your business, from the hiring process through to dismissal to ensure the proper framework is in place. Adopt a mindset that one day you may have to explain your process to an employment judge and this will set you in good stead.

How can your business prepare for a tribunal?

If an employment tribunal case is filed against your business and you decide to defend against the claims made, it is critical to ensure you are adequately prepared. Most tribunal cases are won or lost on one thing: evidence. The moment a tribunal is filed, get professional advice and begin gathering the proper documents. 

Over the past 18 months there has been a huge spike in the number of cases, and this has created a significant backlog. Citizens Advice is estimating an average 38-week wait time per claim, with more complex hearings facing an even longer wait. This makes gathering crucial pieces of information early even more important. Leave it too long and a piece of evidence may be forgotten about or lost by the time a hearing commences; and a previously engaged witness may become otherwise unavailable or inconsistent with their original recollection of events.

Proper understanding of the case being made against you and consistency in your defence are equally important. Ensuring your response addresses each allegation directly is key, making concessions where appropriate and setting out a clear version of events for the judge where you feel there is an unfounded allegation. In addition, all persons involved with your defence should be properly prepared, ensuring a consistent narrative that is straightforward and factual rather than emotive, based upon the same collection of evidence.

Alternatively, there are other options to avoiding a court appearance once a claim has been filed, such as negotiating a settlement, mediation or judicial mediation, which is currently being encouraged by the tribunals. However, the costs and benefits involved with going down these routes vary significantly and should be considered on a case-by-case basis. 

Regardless of whether you decide to defend against the claim, or come to a commercial agreement, it is essential to get an employment lawyer involved from the offset as they will be able to navigate the intricacies of this constantly evolving process.  

Chris Boyle is a partner and head of employment at Napthens Solicitors