How to avoid your day in the employment tribunal

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09 July 2010

On 30 June 2010, the Tribunal Service produced its annual statistics identifying an increase of 14% in single employment claims in the last 12 months. If multiple claims (i.e. those where a number of cases arise from the same set of facts – e.g. TUPE cases) are included, this figure rockets to a staggering 56% increase in claims in 2009/10. It is not surprising that the ability and efficiency of the Tribunals to deal with cases has suffered. In 2008/2009, Tribunals disposed of 74% of their cases within 26 weeks of receipt, but this has dropped to 65% in the last 12 months and for anyone in the East London Tribunal, double this time estimate is not uncommon.

In simple terms, there are more claims and the system is struggling to cope.

The situation is complicated as practices vary between different Tribunals making it difficult for employers to predict legal costs, management time and the progress of claims.

Another recent survey identified that only 32% of claimants are legally represented reflecting a downward trend from the previous survey and that 45% of discrimination claims are brought against employers with 250 employees or more.

With more claims being brought by more unrepresented claimants in a system that is struggling to cope with demand, more than ever, employers will want to do as much as they can to avoid having to defend Tribunal claims.

What can you do?

In order to minimise the risk of employment tribunal proceedings, there are a number of general steps which employers should take:

•  Review relevant policies and procedures (including diversity, bullying and harassment) to ensure employees know what is required of them.

•  Record in writing all procedures and processes carried out (e.g. performance management, redundancy, changes in terms and conditions and disciplinary or grievance issues) so that you can evidence what has taken place.

•  Follow your own internal procedures and, where appropriate, the ACAS Code of Practice on disciplinary and grievance issues.

•  Train managers so that they understand what they need to do.

•  Ensure there is clear and transparent communication with employees so that they understand why steps are being taken. Many discrimination claims arise out of situations where employees have not been told why action has been taken against them and, in the absence of any explanation, reach the conclusion that it was on discriminatory grounds.

•  Sense check all decisions, both from a legal and business perspective before they are taken to ensure that the risks and potential consequences are understood.

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