Age claims on the increase in tribunals

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04 October 2011

Statistics suggest the recent surge in cases is over but employers should remain vigilant as law changes take effect.

The number of employment tribunal claims brought over the last 12 months has fallen by eight per cent, according to the latest annual figures from HM Courts and Tribunals Service.

However, employers should not become complacent. While this is a drop from last year, the latest stats show a 44 per cent increase on 2009/2010 figures.

Age discrimination

The data, released on 1 September, also revealed a distinctive trend upwards in age discrimination claims. They increased by a hefty 32 per cent, in sharp contrast to other discrimination claims which all stayed at a similar level to 2009/10. We may see the number of age discrimination claims increase further this year, as employers struggle with the removal of compulsory retirement and associated retirement procedures, and staff begin to exercise their new rights to remain at work. It’s worth noting, too, that the median award in age discrimination claims (£12,697) is approximately double that for other discrimination claims.

Overall, however, unfair dismissal and redundancy payment claims fell by around 16 per cent. But, with the current economic uncertainty, this trend may not continue.

Directions

So, how is the tribunal system coping? Individual tribunals have some flexibility to determine how they manage cases, and there appears to be some inconsistency over when and how cases are dealt with. Although tribunals have an estimated target to hear cases within 26 weeks of a claim being filed, a number of hearings are listed well beyond that date, with directions hearings (called if the chairman feels issues in the case need clarification) set close to those later hearing dates. However, there is evidence that some tribunals list hearings swiftly and set early directions hearings running from receipt of the claim.

This means it can be difficult for employers – particularly those with sites in different areas of the UK – to predict the progress of claims, and associated management time and legal costs, and ensure they are able to defend claims robustly.

Be prepared

At a time when HR teams are so busy with restructuring, it is difficult to prioritise preparing for the worst case scenario of receiving a tribunal claim, but the financial benefits make it well worth investing the time now, so as to be in the best position to defend company decisions should the need arise. It is crucial, therefore, for HR departments to have consistent and reliable policies and procedures in place, with which everyone is familiar.

Policy checklist

  • Review employment policies and procedures regularly, and ensure these are communicated to line managers and staff. Key policies are likely to include conduct, performance, attendance, diversity, bullying and harassment. Ensure employees know what is required of them and that the organisation can demonstrate workforce awareness of the required standards.
  • Sense-check employment decisions for compliance. Ensure the business understands the legal risks of any disciplinary action, so that decisions are taken in context.  
  • Follow internal procedures and, where appropriate, the ACAS Code. An employer failing to follow its own procedures will have more difficulty defending a claim and may be in breach of contract if the procedures are contractual. Following the basic principles in the ACAS Code of Practice on Disciplinary and Grievance Procedures (where this applies) should avoid a potential increase in tribunal compensation of up to 25 per cent.
  • Train line managers and relevant personnel to ensure those responsible for implementing procedures understand employment policies and the risks. Make sure employees know what standards are acceptable, especially regarding diversity and discrimination.  
  • Ensure clear communication with employees, giving the reasons for decisions taken, when making workforce changes to ensure employees understand why steps are taken. Employers should also clearly explain decisions reached in internal processes, such as those dealing with disciplinary and grievance issues. Many discrimination claims arise because employees are not given reasons for a decision and presume it to be discriminatory. A lack of alternative explanations can also expose an employer to greater risks in tribunals.
  • Keep accurate written records and store these where they can be identified and accessed easily. Relevant tribunal evidence needs to be readily available, which may be many months after the event.

A version of this article was published by People Management on 12 September 2011

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