Minimising The Risk Of Employment Tribunals

Recently, the French Bank BNP Paribas dominated headlines when it was sued by a female employee for sexual discrimination in the UK. The banker won more than £2 million in compensation for the discrimination faced from her male boss and the case shone a spotlight on the process that many employers may, at some point, have to navigate.

It is now five years since employment tribunal fees were abolished by the Supreme Court, making justice more accessible for employees across the country.

Laura Kearsley, partner and solicitor specialising in employment law at Nelsons, discusses the issues that could be a catalyst leading to Employment Tribunals and explains the best ways for businesses to avoid these claims. 

When it comes to employment tribunal claims, it’s important to bear in mind that there is an incredibly broad range of issues that could be the catalyst, such as:

• Unfair dismissal;
• Breach of contract;
• Discrimination;
• Whistleblowing;
• Pay; or,
• Working time disputes.

As employers, the first time it will be clear a claim has been issued will be when the Employment Tribunal paperwork arrives in the post. However, it’s likely to already be on the radar as an impending claim if the Advisory, Conciliation and Arbitration Service (ACAS) has been in touch to see if a resolution can be reached.

Act fast

It’s a mandatory requirement for anyone wanting to bring a claim forward to register with ACAS first. ACAS attempts to resolve issues without the Employment Tribunal’s input, which is known as Early Conciliation.

Should this fail, a response pack will be sent via the post containing all the information relating to the employee’s claim, providing the employer with the opportunity to give their account of what has happened. Once the pack has been received, a response is required within 28 days. This can be done online, by completing the form and returning the pack, or by downloading and filling in the form then sending it to the Employment Tribunal office handling the claim. If a response isn’t received within 28 days, the employer may be excluded from taking any further part in the claim and, in some cases, the tribunal may automatically rule in favour of the employee.

Next steps

Once the employer’s defence has been filed, a preliminary hearing is sometimes held for the judge to rule on certain aspects of the claim, for example:

• Any jurisdictional points i.e. whether the claim is out of time;
• What aspects of the claim will proceed;
• The time and date of the Employment Tribunal; and,
• What steps both parties must take beforehand.

Once adequate time has passed for both parties to gather the required evidence, the full Employment Tribunal will take place.

The Tribunal

At the full Employment Tribunal, both parties and their witnesses will be asked to give accounts of what has taken place, be questioned and provide closing arguments. It’s worth bearing in mind that these hearings are a matter of public record, therefore members of the public may attend unless specific privacy/reporting restrictions have been imposed.

Should the Employment Tribunal rule in favour of the employee, it’s highly likely the losing party will be ordered to do one of the following:

• Pay compensation: The amount of compensation is usually dependent on the type of case. For example, in an unfair dismissal case, a claimant can usually claim for their loss of earnings up to a maximum of one year’s gross pay. Whereas in discrimination cases, a judge can award compensation for injury to feelings on top of this;
• Give the employee their old job back, or offer them a similar role; or,
• Provide the worker with improved working conditions.

However, if the Employment Tribunal rules in favour of the employer, the losing party can request that the judgement be reconsidered or lodge an appeal if they believe there has been an error. The employee has 14 days in which to do this.

In most cases, the employer remains responsible for their legal costs, despite winning the case.

Due to the ever-changing landscape that is employment legislation, it’s crucial to review existing contracts, policies and procedures regularly to ensure that they are fully compliant, up to date and safeguard the business’ rights – paving the way for a sound employer and employee relationship.

Employment law is extremely complex. Therefore, if a claim is filed, it is vital to remain calm and seek legal advice as soon as possible to ensure the business is protected throughout proceedings.

For more information about Employment Tribunals, please visit: www.nelsonslaw.co.uk/managing-your-workforce/employment-tribunal-solicitors/