What would you do if you received a claim?

The number of Employment Tribunal (ET) claims is on the rise after the abolition of fees in July 2017 (claims in 2018 almost trebled compared to the previous year), meaning less barriers for the average employee.

UNISON who successfully challenged the fees – which ranged from several hundred to over a thousand pounds to make a claim – say this was a victory and has restored workers having proper access to justice.

The sudden uptake has put an inevitable strain on the system and cases are taking much longer to resolve. Whilst the MoJ are currently taking steps to better resource their Employment Tribunals, the present climate can be extremely daunting for employers facing claims.

Whether you win or lose, ET claims cost business’s time and money and can be hugely disruptive, especially in smaller businesses. The easier access means you are more likely to face a claim if you cannot resolve a workplace dispute. The longer timeframes obviously put more strain on any business facing a claim.

So, what can you do to make sure you’re prepared?

It is about managing risk. The first step I would suggest is to ensure awareness of basic employment rights by the key stakeholders in your business. How you do so will depend on your business.

Did you know that whilst an employee does not have ‘full’ employment rights (to claim unfair dismissal) until after two years’ service, there are several other ‘day 1’ rights? The most obvious being protection from discrimination but also some statutory rights and protection from detrimental treatment as a result of whistleblowing. An understanding of the minimum protection afforded to your workforce is an essential starting point.

The second step I would suggest is to ensure that not only your policies, procedures, practices and handbooks etc. are fit for purpose but that your workforce is familiar with them and that they are complied with in practice. Again, how you do so will depend on your business but simply getting managers and staff to sign your policies is unlikely to be sufficient. Instead it might help to ask yourself these questions:

• How do you ensure your workforce know the types of behaviours expected of them at work?
• What do you do to ensure equality awareness?
• How do you ensure your people know what is/isn’t acceptable behaviour in your business?
• How do you assess the effectiveness of your policies and procedures?

If alarm bells have started ringing, it might be worth starting from the beginning. Look at issues (informal or formal) that have arisen or might arise in future should you continue with the current status quo.

Do you think they could be avoided by taking some pro-active steps? For example, training your management/supervisory staff on how to deal with grievances/conduct/capability issues? Would introducing some interactive workshops on equality and diversity benefit your teams?

The main question is are you doing enough?

An ET claim lands on your desk. What do you do?

Whether or not your initial feeling is that you are prepared to defend the claim, the advice would be to speak to a professional. This need not be a lawyer. An experienced and most importantly independent HR consultant with an ER background will be able to assess the facts and advise you on your options without the cost of full legal assistance at this stage.

Considerations you might need to take on board are what the claimant is looking for (financial, reinstatement etc) versus the cost of going to trial. The latter of which can be expensive especially if several witnesses from your business are called, not to mention potential adverse publicity and the significant cost of a legal defence, which you are unlikely to recoup. Saying that, there are some occasions where it is very much the right thing to do and often employers who feel they did everything properly wish to pursue the defence of a claim as a matter of principle.

All claims have to go through a process of mediation with Acas called “Early Conciliation”, so if you did decide to settle this is often a good opportunity, although sometimes if the claimant does not wish for Acas to liaise with the respondent, you may not get an opportunity to participate.

As we all know, prevention is better than cure, so in light of the recent uptake in claims, rather than taking the reactive route now really is a good time to carry out a ‘health check’ of the risk of a claim in your business.