The way workplace disputes are being pursued is changing. Sam Murray-Hinde of law firm Howard Kennedy lays out how a Tribunal can affect small operators
With Employment Tribunal fees having been quashed by the Supreme Court in July, some larger operators are noticing a change in the way workplace disputes are being pursued by both employees and unions.
For some, there has already been a noticeable increase in claims, meritorious or otherwise. For smaller operators, being faced with a legal claim can be daunting.
Before a claim can be presented, employees have to go through mandatory early conciliation via ACAS. They notify ACAS of their potential claim and you are contacted to see if settlement can be reached. The conciliation period normally lasts up to one month.
If settlement fails, a certificate is issued. Employees need this in order to present a claim to the Tribunal, via an ET1 form.
Sadly, where employees have unrealistic views on compensation, some claims are cheaper to defend than settle. Others may need to be defended to send a tactical message to the workforce.
Witness statements
Claims for unlawful deductions from wages and unfair dismissal are normally listed for full hearing by the Tribunal upon receipt. Discrimination claims are listed for a preliminary hearing so that the legal issues can first be clarified. The ET1 form is then copied to you by the Tribunal, along with any notices of hearing and/or orders. Your response has to be submitted on an ET3 form within 28 days.
The response should be kept as short as possible, setting out the factual chronology and whether or not the allegations are admitted or denied. Further detail should be saved for the witness statements.
Identify your witnesses early on so that you can speak to them and fully understand the background to the allegations and the merits of the claim. If they have not given evidence before, it is worth them attending a Tribunal hearing so that they know what to expect (most hearings are held in public, and you can sit in as an observer).
A judge reviews the ET1 and ET3 forms and can list the matter for hearing, and/or issue orders. The orders will set a timetable for:
- The employee to serve a schedule of loss
- The parties to disclose relevant documents
- The exchange of witness statements
- Agreeing an indexed and paginated bundle.
Less formal
Tribunals are less formal than the courts, and hearings are normally before a judge sitting alone, unless they involve discrimination allegations, where the judge will have two side members. Judgment can be given on the day, or reserved.
If you lose, you should request written reasons within 14 days, as these are needed in order to lodge any appeal, should there be grounds.
Tribunals will only make costs awards in limited circumstances. Therefore, if the claim is manifestly unmeritorious, it is advisable to put the employee on notice of costs from the outset and then use this as the basis for a costs application on conclusion of the matter.
As ever, prevention is better than cure. It is important to have in place, and keep updated, core policies and procedures and ensure management apply these consistently. Training is also invaluable in helping managers to spot potential issues and know how to deal with them, including how to effect a procedurally and substantively fair dismissal.
