When employers knowingly treat employees unfairly they are relying on inertia, employees’ fear of consequences and those employees wariness of legislative processes to keep them, the employer, safe.
But when flying by the seat of your pants doesn’t work, and the employee or ex-employee fights back then the consequences can be devastating.
It is very easy for a dis-enchanted employee to file an Employment Tribunal claim (an ET1). It can be done on line and it is not necessary for the online form to be completed thoroughly – indeed some claimants hardly complete it at all.
Your first knowledge of this will be a contact from ACAS to attempt a conciliation. Essentially this is a bargaining process in which you seek to “buy-off” the claimant (who is usually but not necessarily a past employee). This can be a worthwhile practice, especially if you are even partially “culpable”. Estimates of defending an Employment Tribunal vary but for a relatively simple one-day case you could be looking at £5,000 in legal fees. But that is not all. The opportunity costs of unproductive time can be as great if not more.
Sometimes the claimants seek unrealistic sums, £20K, £40K, £50K or more. In most cases there is little reasonable option but to fight such claims in court. But that is where the opportunity cost comes in.
If you decide to fight, then the first task will be prepare a Response to the claim. This can be straightforward (sometimes) or demand expert skill and care (often). Even in straightforward cases it will be wise to seek some advice. You are likely to spend some time over this task. The Response has to be sent to the Tribunal according to a strict deadline. It is not seen by the Tribunal until just before the hearing and has the potential to influence the Tribunal one way or the other (though Tribunals will deny this).
The claimant may respond to your Response in an attempt to muddy the water. All this takes more time, especially if having considered the detail, you wish to respond further.
At the claimant’s request, the court may order disclosure of pertinent documents both at this stage and later. You might have difficulty finding the documents but it will be best that you do.
There may be a pre-hearing or a directions hearing to establish the points that the Tribunal will be called on to decide, and to address practical matters such as how many days might be required. These hearings also decide who will be responsible for preparing the bundle (usually the employer) Typically these hearings are over the phone but in other cases you or your representative will need to travel to Manchester (if you are in Lancashire). Takes more time.
While in theory the case can be settled at any time (by agreeing a cash sum) in practice you are likely to need to prepare witness statements to support the case outlined in your Response. The statements need to support every point in the Response, and contest any points the claimant may have brought up in the interim. It is also worth anticipating so far as possible any points the claimant might bring up in their statements. These witness statements are crucial documents and if you are taking legal advice expect you and your advisers to take some time over them.
Everything stated has to be supported with “evidence”. As a general rule that means paper – contract of employment, job descriptions, supervisions (in the care sector), performance reviews, attendance records – the list goes on. Gathering evidence can be a burdensome task and it can, realistically, only be done by the employer.
These documents need to be compiled in a “bundle” and indexed so the Tribunal can refer to them. You may need 5 copies. Compiling them, let alone indexing them, is not as easy as it sounds. Furthermore the employer usually has to compile the claimants bundle! One claimants solicitor kept feeding us new documents right up to the hearing date. Each one had to be copied and added to every bundle. Typically bundles run to a couple of hundred pages – I have seen them in filing trolleys! Administratively it can be a nightmare.
Then there is the Hearing – an adrenaline filled day in a room in Manchester or other City Centre as appropriate. If you want to know what might happen next then, come on one of our accompanied Employment Tribunal visits.
Malcolm Martin FCIPD
Author Human Resource Practice