Avoiding and Winning Employment Tribunal claims
As the number of individual employment rights increases, so does the risk of an employer having to deal with such claims. So how do employers minimise the risk of claims and how do they give themselves the best chance of successfully defending claims?
Minimising the risk of claims
The best way of minimising the risk of claims is to have a happy and contented workforce. However, we live in the real world and, with the best will in the world, problems inevitably arise in the inherently personal environment of employer-employee relationships. A good starting point is to have clear terms of employment, policies and procedures setting our what each party expects (and is entitled to receive) from the other – whether that be salary and benefits from the employer or performance and conduct to the required standard from the employee. Many employment disputes arise due to a lack of clarity or understanding in these areas or as a consequence of unreasonable behaviour, whether on the part of the employer or employee or sometimes both. Much of the employment legislation is underpinned by the principles of ‘fairness’ and ‘reasonableness’.
Good communication is often the key to avoiding, or at least minimising, the risk of Employment Tribunal claims. Simply having policies and procedures is rarely enough. It is important that the employer’s managers, at all levels, are aware of the rules governing the employer-employee relationship, whether they be under individual terms of employment, the employment legislation or an employer’s own policies and procedures. This is best achieved by periodic training as employment law is constantly evolving and new legislation is often misunderstood. In some cases, employers are totally unaware of the existence of the legislation. Ignorance of the law is never a valid defence and usually proves costly.
Successfully defending Employment Tribunal claims
To successfully defend an Employment Tribunal claim, an employer will need to satisfy the Tribunal that it acted within the law. To achieve this it will need to produce evidence demonstrating this to be the case. The best form of evidence is almost always written documentation prepared at the time supplemented by verbal evidence from a witness who is able to corroborate the written evidence. The importance of ensuring that key conversations, actions and pieces of information are recorded at the time and placed on the employee’s personnel file cannot be over-emphasised.
Most employment claims are not black and white. The fact that an employee has brought a claim in the first place usually means that the employee genuinely (but not always justifiably) feels aggrieved about their treatment and is seeking redress. Commonly, this is because the employee has not be made formally aware that their employer is dissatisfied with them (for whatever reason) even though this dissatisfaction may have been in the employer’s mind for some time and has often been growing over a matter of months, and in some cases years. Whilst the employer’s dissatisfaction may be justified and the employee may have been ‘getting away with it’ for a significant period of time, the lack of any formal action means that the employer is at risk of losing the claim ‘on a technicality’ which often results in a double-whammy – the employer’s credibility with its remaining employees is damaged and, to add insult to injury, it finds itself having to pay compensation to an unsatisfactory former employee.
The statutory Disciplinary, Dismissal and Grievance Procedures introduced in 2004 are designed to ensure that potential disputes are raised and discussed by employers and employees before any claim is brought. There are sanctions for non-compliance and in many cases employees will be prohibited from presenting an Employment Tribunal claim until they have raised their grievance internally. (For more information please click here) The emphasis is very much on the parties meeting face-to-face in the belief (often rightly) that this form of direct communication – rather than letters and emails – is much more likely to result in a satisfactory outcome.
Taking legal advice at an early stage is also recommended for 2 main reasons – to ensure, firstly, that that employer’s understanding of the legal position is correct and, secondly, that all subsequent communications with the employee do not prejudice the employer’s position; indeed the advice often enables the employer to enhance their position.
The answer to the question posed at the start of this article – how do employers minimise the risk of claims and give themselves the best chance of successfully defending claims? – can be summarised in 3 words, paperwork, communication and understanding as the absence of any one of these 3 elements will inevitably hamper the employer and could, ultimately, prove fatal to their attempt to successfully defend a claim.
We undertake reviews of employment documentation to ensure that it is up-to-date and suitable for the particular employer. We also provide tailor-made advice and training on the issues covered by this article. If you would like more information about these services, please contact Paul Lane on 020 7712 1715 or by email plane@lanegraham.co.uk
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Date: March 2008
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