How to avoid an employment tribunal

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​Hazel Coutts explores the ways in which employers can ensure their organisation avoids an employment tribunal

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19th September 2017 by TFN Guest 0 Comments

In recent years there has been a significant drop in the number of employment tribunal claims lodged. The government introduced tribunal fees in 2013 with the objectives of reducing the cost of the tribunal service, discouraging weak claims and expediting settlement.

However, the introduction of tribunal fees resulted in a sustained 70% drop in tribunal claims. The high cost of fees and the low value of claims meant that claims were unaffordable for many litigants and uneconomic for most.

In July 2017, the Supreme Court ruled that tribunal fees prevented access to justice and were also indirectly discriminatory – fees for discrimination claims are higher than those for other employment claims causing disparate impact to those with a protected characteristic. Tribunal fees were abolished with immediate effect.

Employers should now prepare for a reverse of the trend of recent years. However, there are some simple ways employers can ensure they comply with their obligations, protect their organisation and mitigate the risks of potential claims.

Hazel Coutts

Hazel Coutts

1. Written contacts and policies

Employers are legally obliged to provide employees with a written statement of employment particulars within two months of commencement of their employment.

Well-drafted contracts and widely communicated policies can help minimise the risk of disputes arising and as such can facilitate a happy and productive workforce.

Recent tribunal and court decisions have highlighted the importance of ensuring that the documentation issued reflects the true nature of the relationship between parties.

A number of successful claims have been raised against Uber and Deliveroo for failure to pay the national minimum wage and holiday pay where self-employed contracts had been issued but in fact the relationship reflected that of a worker. 

2. Act early

Many potential disciplinary and grievance issues can be dealt with informally saving time and expense. In more serious cases it may be necessary to arrange formal disciplinary or grievance hearings.

It is worth bearing in mind that, with some limited exceptions, employees are generally unable to raise a claim for ordinary unfair dismissal until they have accrued two years’ continuous service.

In the event that conduct or capability issues arise within this period, a fair dismissal may be possible with only minimal risk. Whether dismissal is appropriate will depend upon the facts and circumstances in each particular case and it’s worth taking advice before coming to any decision. 

3. Employment law and HR training

It is vitally important for employers to keep up-to-date with the law. Training for frontline managers and HR teams is essential to help develop their knowledge and experience in managing employment law and HR matters such as disciplinary, grievance, equality and diversity, performance and absence management processes.

Our employment team produce regular updates which you can sign up to via our website. The team also run free bi-annual employment law update seminars, the next of which will be hosted in each of our three offices (Edinburgh – 27 September, Glasgow – 28 September, and Dundee – 4 October), and again you can sign up for those via our website.

4. Take advice

Employment law is constantly changing and employers could be forgiven (although not by tribunals) for struggling to keep up. It is critical that employers take advice when managing difficult situations and in particular dismissals.

Scottish Council for Voluntary Organisation members (SCVO) with an income under £500,000 are entitled to receive up to two hours of free legal advice so do not hesitate to contact SCVO should a tricky issue arise.

All employers are at risk of receiving an employment tribunal claim. Preparing now can help to reduce risks, disputes and costs later, particularly in light of recent developments in the law. 

Hazel Coutts is a senior association at MacRoberts. She has specialised in employment law since qualifiying as a solicitor in 2005.

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