News & Insights

Five things you must know about…avoiding tribunal claims

Ian Machray gives his tops tips for all employers on how to avoid tribunal litigation.

It is not possible to explore the intricacies of every aspect of employment law in this note, but there are some basic principals that can help reduce your risk of litigation.

1. Do your homework

There are many factors that can lead to tribunal litigation, some within and some outside an employer’s control. The key to reduce the risk is to deal with the matters which are within your control in a manner which is not overly costly or a handicap to your business.

The obvious starting point is ensuring that your own contracts and policies are up to date, as they can really help protect your position. This does not have to be costly and we will happily review your existing documents without charge. If you want to check the documents yourself a good starting point would be to read our note on the five most common (and costly) contract mistakes, available here.

2. Can you identify risk?

Employers will not always be able to follow the letter of the law in every case. This may be due to factors outside their control (e.g. the actions of a third party) or simply due to cost and resource limitations.

Accordingly, when considering the approach to follow in a particular case (and the resources to commit) it is important to consider the risk of tribunal litigation arising.

Employers, and all managers, should accordingly be aware of the issues that most commonly give rise to disputes – including those claims which can be brought by employees with short service. If you would like a copy of the note we provide to our clients summarising the top risks and the claims that can be brought without any length of service please just email me.

3. Be careful with documents

It is possible for an employer to fundamentally undermine their case in the early stages before they have taken action or contemplated taking advice.

In particular, it is important to be careful in the creation of internal documents, especially emails, as these could well be disclosable if tribunal proceedings are issued or a data subject access request is made.

The disclosure of a document that undermines your legal arguments or carefully crafted process could easily result in tribunal litigation. For example:

  • Emails that demonstrate that the decision as to who was going to be made redundant was concluded before scoring had been undertaken;
  • Emails that show a dismissal decision was actually taken by somebody who wasn’t present at the hearing.

4. Get your process right

A large part of employment law is about applying the correct process. If you have up to date policies and procedures these should help guide you on the correct procedure that should be followed.

It should also be added that if a process looks compliant, as and when it is initially reviewed by an employee’s adviser, their initial advice may be that the employee’s prospects of success with a claim is low. Conversely, basic errors may well encourage an employee to take matters further or investigate the substance of the decision in greater detail.

Employment tribunals will look beyond the paperwork to determine the reality of the situation, but it will be much harder for an employee to win a case on the basis that the process was a sham rather than on a simple procedural irregularity.

It is accordingly important to get the process right and be seen as having got the process right.

5. Consider alternatives

Whilst employers may be loath to pay a premium under a settlement agreement to an employee to secure their exit, a wise employer will always consider alternatives to litigation.

This can include engaging in a protected discussion (find some top tips here) to secure an amicable exit of an employee, but can also extend to formal or informal mediation to resolve disputes.

And finally…please just give us a call. A short call or a quick email can really save you so much time and money later – if we can resolve the issue or give you the advice you need in just a few minutes, that is what we will do.