Who’s Afraid of The Big Bad Employment Tribunal?

Unless you're a solicitor, the arrival of an ET1 tribunal claim does tend to cast a gloom over the morning. Employment tribunal claims have risen considerably in recent years. In the current climate contractual variations and redundancy dismissals are commonplace; as I write this another high profile example has emerged.

I have just read on the BBC website that shares of Olympus Corporation have dropped for a second day following the company’s dismissal of Michael Woodford, its first non-Japanese chief executive officer. There probably won't be an employment tribunal claim in this case - but you never know! In the best of all worlds we should be managing in such a way as to discourage the likelihood of tribunal applications by compliant, timely and tactical management.

Provided your managers manage in a robust and appropriate fashion, that’s the best route. And it really does work. In the last 15 years we’ve only had three trials where clients take our advice and we’ve won them all. But we’ve had 100+ cases which we’ve inherited or where clients have not taken out advice. As the compensation culture is here to stay, enhanced by the recession, HR professionals are likely to see many more ET1s and should as part of their professional toolkit learn how to handle them.

While I have seen no official research on this, senior HR consultants and practitioners suggest that the ultimate professional fear for young HR professionals is being taken to an employment tribunal and they simply hand ET1s straight over to a solicitor. HR has long wanted to be seen as a business partner adding value to the business. This is a fantastic opportunity to do so. Operations teams have a tendency to “shoot first and ask questions after”.

If this approach has resulted in a metaphorical “dead body” and the reason you’ve been landed with a tribunal claim, then it’s also an opportunity to give your managers a reality check. Get actively involved in the management of tribunal claims, with a view to being able to fight most yourself. Unless it’s a very complex matter, in which case specialist legal advice is a sensible precaution, it is far more cost-effective to fight your own corner.

Solicitors are expensive, but the quality of legal services is extremely variable. Many solicitors instruct counsel, so you pay two lots of legal fees. The cost for a two day hearing can quite easily exceed £10,000 to present the case, even if you win. As the vast majority of cases deal with quite straightforward matters, usually relating to unfair or constructive unfair dismissal or unlawful deduction of wages, it makes sense to be able to present it yourself.

The chances are that you will already have all the facts at your fingertips which means you are fully up-to-speed with the relevant information and therefore best-placed to tackle the problem. If you brief a third party, he or she will have to spend some time – all billable – reading the case. Tribunal claims can arise at any time and it pays to be prepared.

80% of claims are settled or withdrawn, so you need to know what happens between ET1 and tribunal. Acquaint yourself with the process. Shadow someone with experience and get some training. To get you started......

1. Check whether the claim has been submitted on time. The general rule is that an employee has three months from the effective date of termination in which to submit a claim. If the complaint is about discrimination, he has three months from the date of the last act of discrimination complained of.
2. Submit your defence within 28 days from receipt of the ET1. If you miss the deadline, the tribunal will have no sympathy for you and judgement will be made against you.
3. Deal with each allegation separately and cover all the points raised by the employee.
4. Collect and keep evidence at an early stage.
5. Take statements from witnesses as memory fades very quickly with the passage of time.
6. If the ET1 is unclear you can ask for further and better particulars. The Claimant then has to respond to specific questions.
7. If he does not do so, you can request a strike-out.
8. If you think that the claim has no reasonable prospect of success or for example, the claim is out of time you can apply to for a pre-hearing review. If the tribunal grants a PHR and agrees with your submissions, it can strike out all or parts of the employee's claim.

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