Lindsays Seminar, Edinburgh 29 May 2018 – Employment Tribunal:

The number of Employment Tribunals (ET) reduced when fees were introduced in July 2013. It cost £250 to lodge a claim, and required payment of £950 nearer the time of the Tribunal. Fees introduced to stop no point claims. The number of ET dropped by 10,000 per month as a result. Good news for employers, bad for employees. Unions caused two judicial reviews.

Unisons challenges between 2013-2017 led to conclusion that the tribunals were causing limited access to legal rights.

Fees were abolished in 2017 and this has meant claims rising from 4000 to up to almost 9000. Pre claim conciliation at ACAS is now a requirement before a claim can be lodged. It is unknown how successful this will be.

Tribunal Statistics
Average unfair dismissal award in 2016/17 – £16,543
Average disability discrimination award in 2016/17 – £31,988
Average cost of defending a claim in 2010/11 – £8500

Significant increase in level of compensation possibly because the claims that were coming forward had more credibility.

In Scotland tribunal hearings take two days, in England can take one day. Therefore cost in Scotland can be over £8500.

Risk
The most significant factors which inform risk are:
Length of service (ie an employee with 32 years service v one with 3 years)
Salary level
Conduct – how serious
Automatically unfair – teacher who show 18 film to class of 15 year olds. Fired but claimed that cystic fibrosis and that had caused stress and affected his judgement was impaired by his disability. He was awarded £646,000 mainly because of the discrimination element.

Risk – be very careful when dismissing pregnant women.

Employment Tribunal (ET)

Clearly identify the allegation
– is this clear and easily understandable?
– Does this clearly relate to the established policies and procedures?
– Does it need to be?
– Are they applied consistently in practice?
– Is the outcome consistently applied? (Can be different for reasons inc length of service)
– Be confident and clear in the allegation raised (must relate back to policies and procedures)

Identify the decision makers
– HR involvement (if confused not good)
– boards, panels and committees can fog the decision maker
– communication with deciding officer
– documentary evidence
– approach at hearings

Provide fair notice
– timing of hearings (use common sense, do not go ahead in employee's absence)
– provision of all relevant evidence to be considered
– do not assume knowledge e.g of policies and procedures (even if long serving employee)

Clearly communicate the decision
– specify the allegations upheld
– identify and consider any mitigation offered, or lack of offered
– avoid office jargon and aggressive language / punctuation (“you have not reached out” “not a team player” “poor communication” “not thinking out of the box”)

Long term sick – difficulties caused need to be spelt out. Be clear, had to recruit, impact on rest of the team.

Avoid pre-determine the decisions
– do not use pre-written letters
– allow a clear 48 hours to consider decision
– avoid delivering decision at end of hearing

Don't assume or second guess a witness' or employee's position
– put all points of relevance and substance forward
– document responses

Disclose witness statements
– generally this should be done – natural justice
– only in exceptional cases should this not be done
– avoid knee jerk reactions

Clearly document and record
– obtain employee's agreement at conclusion of hearings with a brief signature
– more likely to be reasonable and agree prior to communication of decision
– avoids difficult tribunal dispute over content and accuracy of discussions
– results in shortened hearing, clearer evidence and reduced litigation costs

Use ET powers – put claimant to proof
– will assist your defence
– will narrow the focus of the dispute
– assists the tribunal
– May result in additional options, such as strike out, costs or settlement