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The Dreaded Remedy Hearing

If there’s one type of hearing that wins the booby prize for unpopularity with employers, it’s the remedy hearing.

Imagine the scenario: you have been to the Employment Tribunal once, your witnesses have been hauled over the coals by your former employee’s representative and by the Employment Judge. Now you have to go back to the Tribunal again for the Judge to decide how much you have to pay a ne’er-do-well who you were glad to see the back of.

It’s not pretty. But there are a few steps you can take at this stage to minimise the pain:

  • Give serious thought to settling the claim. By this stage, it should not be rocket science to work out how much compensation the Tribunal is likely to order you to pay.
  • Don’t be strong-armed into paying over the odds, however much you may never want to see the inside of an Employment Tribunal again.
  • Think seriously about how you can challenge the Claimant’s evidence of loss. Has he really not been able to work since you dismissed him? Bear in mind that, unless you come up with your own evidence to challenge the Claimant’s case, he could get away with an inflated award.

It really is well worth taking a cool, hard look at your case at this stage of proceedings. Remember, the show’s not over until the fat lady sings.

AND SO TO BED

One issue which has caused particular headaches for employers since 2011 has been the abolition of the default retirement age.

In gentler times, employers were prepared to tolerate a certain amount of deterioration in performance as employees headed into their golden years, in the sure knowledge that they would be able to pension them off when they hit retirement age.

Now it’s not so simple. No less august an employer than Oxford University has found itself in difficulties making a specific retirement age of 67 stick, despite many clever academics having devoted a great deal of mental energy to justifying it.

Employers have a tough decision to make about retirement. Basically, the options come down to:

  • Don’t have a retirement age. If you choose this option, you are going to have to manage employee performance robustly for employees of all ages.
  • Have a fixed retirement age and enforce it without exception. If you do this, you will need to give thought in advance to how you are going to justify your policy.
  • Have a fixed retirement age, with a system for considering applications to defer retirement. Oxford University came unstuck with was with this type of system. Their internal Court of Appeal, headed by a Supreme Court Judge, decided that the purpose of the scheme was to allow the University to have the ha’penny of making some people retire without paying them compensation and the bun of retaining those it wished to keep. But wasn’t that the point?

This decision is bound to cause some head-scratching in academic circles. Have you come up with a solution which does the job better than Oxford’s?

Contact Information:
Hywel Griffiths - Consultant Solicitor
T: 01223 431118
E: hywel.griffiths@ashtonkcj.co.uk
W: www.ashtonkcj.co.uk

Notes: Ashton KCJ employs 300 people in East Anglia and as such is one of the region’s largest and most prominent law firms. It has extensive geographic coverage, with offices in the main commercial centres along the A14 and A11 corridors – Cambridge, Norwich, Ipswich, Bury St Edmunds, Felixstowe and Thetford.

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