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Avoiding Tribunal Claims

Posted on 3 June 2013

Employment Tribunal, Pardoes Employment Law Solicitors

Tribunal claims are not just costly for employers in terms of time and money but they can also be a very stressful experience. The employer will be required to prepare a response to the claim, provide documents which are relevant to the case and prepare witness statements, not to mention, attending the hearing itself.

Whilst it is not always possible to prevent a claim being made, there are plenty of ways to reduce the risk of ending up in a Tribunal which don’t cost the earth.

Documents and policies

The first and most obvious way is to provide written contracts of employment and job descriptions which should be reviewed and updated regularly. In any event, employees are entitled to a written statement of their main terms and conditions within two months of starting work.

It is also worth drafting a set of basic policies governing issues such as disciplinaries and grievances. In particular, have a look at the ACAS (the government’s conciliation service) code of practice and the non-statutory guidance they produce for an indication of what to include. Crucially, having drawn up the policies, employers must follow them and be consistent in applying them.

Training for managers and communicating with staff

There is not much point in having a set of policies if managers are not aware of them or do not understand why they exist. It is important therefore to train managers in how to deal with problems and the need to follow procedures impartially and consistently.

Likewise, staff should be aware that the policies and procedures exist. This does not mean everyone has to have a copy of every policy - all that’s needed is to refer to the staff handbook (and where it can be found) when giving staff their written statement of terms and conditions.

Keeping written records

It’s a good idea to keep records of meetings by taking minutes and ensuring that these are circulated and agreed by the participants, after the meeting.

If a conversation is important enough, then it should be followed up in writing to confirm the gist of the discussion and anything that was agreed.

Anyone involved in recruiting staff to the organisation or deciding who should be promoted should also keep records of how they came to their decision.

Dismissal and discrimination

However tempting it may be and however bad the conduct, it is best not to dismiss someone on the spot. Instead, if their conduct warrants an immediate response, then the employer should suspend them until they have had time to carry out an investigation into the circumstances.

In order to avoid discrimination claims, employers need to ensure that they do not appear to be favouring one group over another - for instance, the able-bodied in favour of the disabled. They therefore need to ensure that their approaches to recruitment, promotion and training do not treat any group differently to any other and managers should be trained accordingly. Likewise when it comes to making redundancies or reorganising the company.

Heed the warning signs

If there are indications of a problem brewing (for instance, someone flags up a potential grievance), then try to deal with it as quickly and informally as possible.

Issues often escalate out of control simply because they are not handled promptly and/or transparently enough in the first place.  Managers therefore need to be trained in how to take the heat out of a situation and, again, to be consistent in how they handle potentially tricky situations.

Pre-termination negotiations and settlement agreements

It is not yet clear when the concept of pre-termination negotiations (introduced as part of the Enterprise and Regulatory Reform Act) will become law but it is likely to be either October 2013 or April 2014.

These allow employers to have a discussion with their employee with a view to terminating their employment on terms to be agreed between them. However, the advantage is that the employee cannot then use the fact of that conversation as evidence if they bring an “ordinary” (in other words not “automatic”) unfair dismissal cases as long as there has been no “improper behaviour” on the part of the employer.

Compromise agreements are to be renamed “settlement agreements” under the Act. These are agreements under which an employee accepts a sum of money on termination of employment in exchange for not bringing any further claims against their employer.

COT3

If, however, the worker goes ahead and lodges a claim, all is not necessarily lost as the employer can still use the services of ACAS. 

If the parties to the dispute can agree terms using ACAS as the conciliator, it can then be settled, using a form known as a COT3.

Whilst there is a fairly low threshold for the employee to meet to have a claim accepted by the Tribunal, having comprehensive policies and procedures in place, which are adhered to throughout the business, will minimise the employer’s risk of ending up in a Tribunal. If things do go wrong, there are ways to sort disputes out amicably without reverting to the Tribunal. The key is to act quickly and take advice on your options. 

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