The golden rules for avoiding an employment tribunal

Sarah Furness, partner at Hay & Kilner LLP, reveals what businesses should be doing to reduce the risk of an employment tribunal claim being pursued against them

Last year the Supreme Court ruled that fees that were payable for bringing employment tribunal claims were unlawful and the Government subsequently abolished the fee system. As a result, the number of single claims being received by employment tribunals has risen by around 90 per cent and employment tribunals are reportedly overwhelmed with their increased workload.

It is therefore now more important than ever that businesses take steps to reduce the risk of employment tribunal claims being pursued against them. Tribunal claims are costly to defend with legal fees only being recoverable in limited circumstances. They are also extremely time consuming and there is always a risk of negative publicity.

So, what can businesses do to reduce the risk of employment tribunal claims being pursued against them?

Train managers: Managers who are ill-informed about employment law can make costly mistakes, particularly when discrimination is involved. All managers should have training on the do’s and don’ts with an emphasis placed on practical guidance.

Have up-to-date policies: Businesses of all sizes must have in place up-to-date employment contracts and policies and procedures. Once procedures are updated and introduced, they need to be followed.

Choose the correct procedure: Sometimes the lines can be blurred in respect of when certain procedures are applicable and employers can lead themselves down the wrong path. By way of example, if an employee is underperforming, a decision will need to be taken as to whether the disciplinary procedure or the capability/performance management procedure should be invoked and this will usually depend upon the reasons behind the underperformance.

Remember ICE: It is important at all times when making key decisions that affect employees that you keep them ‘informed’, that you ‘consult’ with them and that you take the time to ‘explain’ the decisions to them after the consultation has taken place.

Do not pre-judge: don’t make it clear from the outset that a decision has already been taken. Employers need to be particularly careful of what they put in their internal emails as ultimately if an employee does bring an employment tribunal claim, then all emails relating to the employment dispute in question would be disclosable. It would be extremely damaging to a defence in an unfair dismissal claim if an email had been sent in advance of the disciplinary hearing saying ‘this person needs to be sacked’.

Make good decisions: You may need to give witness evidence one day and justify your decision so you need to be prepared to stand by it. Ensure any final decision taken is consistent with other dismissals/decisions and that a fair and reasonable approach is demonstrated at all times. Pre-judgments, opinions and personal agendas should not dictate outcomes. Facts dictate outcomes.

The employment team at Hay & Kilner offer a full range of employment law support. Our HR Showcase service can provide bespoke training for all levels of management. We can assist with implementing up-to-date policies and procedures and provide complete support and guidance in respect of employment issues and disputes.

Hay & Kilner
www.hay-kilner.co.uk

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