This year has seen a huge increase in the number of employment tribunals (with a two fold increase in claims per quarter). The driver of this is likely to be the abolishment of tribunal fees in July 2017, following a successful case brought by Unite, questioning the legality of the government’s introduction of fees in July 2013.
As employees can now pursue a case to tribunal by following a prescribed process but without having to pay a fee, employees are pursuing employment cases more readily, therefore increasing the risks associated with managing employee issues.
Detailed below is some information about the tribunal system and what happens if an employee brings a claim against their employer:
There is a time limit of three months (unless exceptional circumstances) for an employee to bring a claim against their employer. This date relates to either the date of dismissal, or for unlawful deduction of wages claims, the date the alleged incorrect payment / deduction was made.
How does an employee bring a claim?
An employee must first contact ACAS to notify them of their intention to bring a claim. At this point they complete an ET1 form and submit this to the Central Office of Employment Tribunals. Before it becomes a tribunal claim, it enters an ‘early conciliation phase’ to see if ACAS can facilitate agreement or settlement before it is submitted as a case.
The first notification that an employer usually receives is contact from ACAS to advise that there is a claim and whether they wish to engage in early claim conciliation. Once early conciliation has started the clock is stopped in terms of the above time limit.
During this period, you have a chance you discuss the issues with ACAS and to put across your version of events and both the employee and employer can put forward a solution, usually an amount they are willing to accept or offer in order to settle the issue before it reaches a court.
If both parties agree to a solution then ACAS will issue a COT3 form (ACAS settlement agreement), which is a legally binding enforceable contract which closes the matter.
If parties fail to come to agreement ACAS will issues an early conciliation certificate and the time limit restarts and an Employment tribunal claim can be brought.
Please note that if you have insurance, you should always advise your insurer at the point you receive ACAS contact.
Responding to a claim
If the employee makes a claim to the tribunal within the time limit, then you will receive a copy of the claim and should make your response on an ET3 form. This form will become a summary of your defence case so is an important document to consider. If you receive advice or have insurance in place, it is important to involve those interested parties at this stage.
Awards and Penalties
In April 2018 the basic award limits were increased in line with inflation increasing the maximum award for unfair dismissal to £83,682 (or an employee’s annual salary)
There are no maximum limits when it comes to a discrimination claim, with the maximum award so far being £1,762,130 with the average award for a discrimination claim sitting at around £25,000.
Employment tribunals are also able to impose penalties on top of any awards where there are ‘aggravating features’ to the breach, usually this is where they find that the employer has acted with malice. This penalty will normally be 50% of the award, up to a maximum of £5,000.
Defending a claim
If you are a ProAktive client it is important to include us as soon as possible in the process. We have a dedicated team of claims handlers, employment consultants and insurance experts to help you through the process. It is also important to gather any documentation and evidence which will help to support your defence and work with your respective legal team.
Preventing an Employment Tribunal
Ultimately the ideal scenario is never to have an employment claim issued against you. Although you can never control the actions of your employees, there are some steps you can take to reduce the risk.
Firstly, make sure you have documented processes and procedures in place, both in the Contract of Employment and Employee Handbook and more importantly follow them.
For ProAktive employment clients your consultant will work with you to create bespoke documentation for your business as well as provide telephone support and advice. That leads to our second point, give us a ring!
Telephone support and advice is included in the service therefore we have a team of consultants who are able to talk you through any employment issues or queries you have within your business.
Finally, tackle the issues. Many employment tribunals could be prevented by tackling internal HR issues head on and before they escalate. Rather than let an employee become a ‘problem employee’ tackle their performance, put good probation or review practices in place and make sure managers and supervisors are trained in how to implement your HR policies.
To talk to our HR Consultancy Team about how we can help you tackle the HR issues within your business, contact us on 01302 341 344.
By Kris Kerins BSc (Hons) PGC (Tech Mgmt) – Risk Services Adviser