Legal

The dos and don’ts for employers anticipating a tribunal claim

15 Sep 2021 By Catherine Kerr

Employment tribunals can be difficult, costly and time consuming so businesses must be prepared, says Catherine Kerr

Like any relationship, employers and their employees can fall out every now and then. Most workplace disputes can be resolved between the parties however, sometimes these disagreements can result in claims and employers can find themselves litigating in the employment tribunal. 

Employment tribunals is used to make decisions regarding any and all employment-related claims from unfair dismissal to discrimination. They can be difficult, costly and time consuming processes, so it’s best to prepare in advance to try and secure the best possible outcome.

Do

  1. Try and avoid a claim in the first place
    On the spot decisions in the workplace have a horrible habit of coming back to haunt employers down the line. Always take a step back and assess the risk before you make any employee-related decision. In the majority of employment-related claims, the employer’s burden of proof is based on reasonableness. So, before you say or do anything you should ask yourself ‘is this reasonable in the circumstances and can it be reasonably justified?’

    Workplace training at all levels is a great way to learn what you can and can’t do in the workplace to help avoid the employment tribunal. As they say, prevention is often better than the cure.

  2. Take every claim seriously
    Employment tribunal litigation is serious and not to be taken lightly. If one of your employees takes on your company and wins, it can have negative effects on you and your business’ reputation and success, not to mention the cost both in terms of money and time. So, take the claim seriously; seek legal advice and prepare properly for the tribunal.

    Additionally, the employment tribunal is unforgiving when it comes to missed deadlines, so ensure you keep on top of key dates throughout the proceedings. 

  3. Prepare extensively 
    The first step in preparing for an employment tribunal is to seek professional help from an experienced law firm. Tribunal claims can be confusing and complex, so it’s best to seek help from an expert, who can guide you through all the steps in the process.

    Next, start arranging and preserving all your documents and prepare some initial witness statements as memories can fade quickly. Organising and verifying your paper trail is of paramount importance. While witness coaching is not permissible in the UK, an employer can learn more about employment-related litigation through training sessions such as employment-law update seminars and mock tribunal cases. 

  4. Be prepared to lose
    Unfortunately, no matter how prepared you are or how strong your defence may be, a win is never guaranteed. Contradicting documents or comments made by a witness under cross-examination can change the direction of the case in an instant. So, be prepared for the employment tribunal to award the claimant some compensation if you lose. 

    Different forms of compensation can include a pay-out to your ex-employee, giving them their job back, paying witness expenses, paying damages or loss of earnings.

    Losing a tribunal claim can affect your business’ reputation. It’s advisable to employ some sort of crisis management at this point, such as releasing a statement in response to the outcome to verify your business’ integrity.

    Hence, some employers opt to resolve tribunal claims via settlement. This limits not only the burden of time and cost but also removes the risk of bad publicity. 

Don’t

  1. Assume the claim won’t go to trial
    While commercial settlement of employment tribunal claims is an option, there is no obligation on either party to settle. Therefore, it is vitally important to adhere to any case management directions from the tribunal and continue to prepare for trial even if the parties are engaged in settlement discussions.

    Furthermore, don’t assume that just because you have a strong defence that the case won’t go to trial. Unfortunately, the threshold for a claimant to show that they have a case to answer is very low. 

  2. Speak about the claim at work
    Like any other judicial proceeding, an employment tribunal claim is a serious matter and should not become office gossip. Only include those essential to the case, to avoid both internal issues and hiccups within the proceedings. Also, make your comments to your legal adviser, and not any work colleagues, as they are covered by legal privilege and cannot be disclosed in the case.

Catherine Kerr is an employment law expert at Primas Law

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