Employment Tribunals – A Broken System?

Employment Tribunals – A Broken System?Welcome to this week’s HR Blast. As HR professionals here at Jaluch we’re often surprised and puzzled by the somewhat arbitrary decisions that some employment tribunal judges make. The outcomes of some cases seem to have little do with employment law and even less to do with common sense! Occasionally, those decisions are corrected at Employment Appeal Tribunal and it turns out that the judge/panel interpreted the law incorrectly. Everyone makes mistakes, but if they can get it wrong, what chance does everyone else have?

Worse still, the system, now seems somewhat broken since the abolition of fees in July 2017, with UK tribunals seemingly unable to handle the mounting volume of claims flooding in. And flooding in they are! The Ministry of Justice has just released Employment Tribunal statistics* for April to June 2018 so we have a much more up to date picture of what’s going on.

What relevance does this have to you? Well if you’re an MD, business owner, or HR professional, you need to be on your guard to not only to do all you can to prevent a tribunal claim in the first place (see our previous blast on this here), but to also understand and be prepared for the fact that if receiving a Notice of Claim, you shouldn’t expect things to go smoothly, or quickly… be prepared for a rocky road ahead!

The Stats & Some Illuminating Stories

The number of single claims lodged for the quarter ending June 2018 increased by 165% compared with the same quarter last year.

People are much more likely to bring a claim now that they don’t have to pay any money up front, and there have been 12,400 fee refund payments made since the fee refund scheme was introduced, totalling just over £10m.

Because of the massive increase in claims, we’re seeing long delays for both preliminary (initial) hearings and full tribunal hearings. One of our clients received a claim in January 2018, and the ET hearing isn’t being held until January 2019. Another company I know of received a claim a month ago and the preliminary hearing isn’t taking place until next February.

Even worse, claims that are out of time (normally a claim should be brought within 3 months of the ‘incident’ or fundamental breach – most typically the date of a dismissal decision or someone’s last day of employment), or that people don’t have qualifying service for i.e. they’re claiming unfair dismissal but don’t have 2 years’ continuous service, are being let through unchecked. This is causing a massive amount of time and energy for Companies that the claim is brought against in terms of preparing a response (ET3).

What we’re also seeing is an apparent failure in various parts of the ACAS system, where early conciliation is not happening as it should be before the ET claim is allowed to be submitted. It appears that ACAS don’t have in place sufficient resources to contact companies, whether by phone, email or letter, to start the process. So, the first that the Company might know about the (ex)employee having a complaint is when the Notice of Claim lands on their doormat, meaning that time that may have been spent on settling the matter in early conciliation stages has been lost. Not great!

The number of single claims outstanding rose by 130% compared with the same quarter last year.

The HM Courts & Tribunal Service is currently recruiting more employment judges, which will help reduce the backlog in the medium to longer term. We’ve seen this issue arise very recently where a client prepared to defend a tribunal, including utilising our support and that of a Barrister, and turned up on the day of the hearing only to be told that the hearing was cancelled and would be held in Spring 2019 because the judge had retired and they’d not been able to replace him. The fact that there was no new judge was bad enough, but to let them turn up on the day with no warning is shambolic. All that lost time and effort…!

The average award for unfair dismissal awards was £15,007.

We’ve seen an increase in people with more than 2 years of service (and even those with less!) bringing unfair dismissal claims (where a dismissal decision the Company made was flawed/unfair), constructive unfair dismissal claims (where they resigned) or wrongful dismissal claims (where a term of the contract is breached). So, do think carefully about how you’re treating your staff and taking them through processes, especially what evidence you’re relying on if you sack them; whether you’re following your own policies and procedures (making your Disciplinary and Grievance Procedures non-contractual is a great help here); and whether you’re dealing with grievances proactively and giving robust outcomes in writing, with a right of appeal. All of these things will be crucial when defending such a claim. Remember – it’s key to show that you acted reasonably as an employer, so do also refer to the ACAS Code of Practice on Discipline and Grievance.

Also, a word of warning; we’re aware of an increasing number of people who are claiming direct employment status through tribunals where the perceived agreement between them and the Company was that they were a self-employed contractor / on a Contract for Services arrangement. Make sure that if you have contractors / self-employed individuals providing you with a service, that the arrangement you have in practice reflects any Contract for Services agreement between you. Don’t fall into the trap of them inadvertently becoming an employee through the back door.

Disability discrimination cases had the largest average award (£30,700) and religious discrimination claims had the lowest average award (£5,100).

It’s worth remembering that for certain types of protected characteristics, such as pregnancy and maternity rights, age, race, disability and sex, there is no qualifying amount of service required to bring a discrimination claim. Therefore, you need to make sure that there are no discriminatory practices or decisions happening in your company or workplace.

This is right from the point of pre-employment (when candidates apply), throughout the recruitment process, on into induction and during the employee’s time with you. To help with this, you’d usually think about having a clear Equal Opportunities and Bullying/Grievance policies, a robust induction which underlines appropriate behaviours, Equal Opportunities or Diversity and Inclusion training for staff, a zero-tolerance culture, clear reporting lines etc. For more guidance, give us a call…

Despite the above, you shouldn’t be down in the mouth at the prospect of a tribunal claim – because we’re on hand to support you with tribunals and help you improve your employee relations in practical terms, to avoid claims.

We offer:

  • Pragmatic and commercial advice to you and your managers, including leading formal processes where you want us to i.e. grievances and appeals.
  • Tribunal support – preparing ET3 responses, liaising with ACAS and the Tribunals services for you, advising you on the process and your case.
  • Half or full day training sessions or 1:1 coaching sessions for your HR team and line managers delivered by our Jaluch team, covering topics such as managing discipline and poor performance; managing grievances; essential employment law for managers; coaching skills for managers; motivating, engaging and retaining staff etc.
  • Train the trainer sessions and materials on Employment Law for your trainers to roll out training internally.
  • Managers Guidance, Letters, Forms, Policies etc to help you through difficult staffing issues – available on DocsWizard.

With Jaluch, we don’t tie you in to a long-term contract and both our large and smaller clients often prefer our option of pay-as-you-go which can be very quickly set up so there is no delay in us giving you the support you need. Why wait? If you would like to discuss any of the above further, then please don’t hesitate to get in touch with one of our HR Consultants on 01425 479888. (services offered throughout the UK)

* Source – Tribunals and Gender Recognition Statistics Quarterly, April to June 2018 (Provisional)

The information contained within this article is for general guidance only and represents our understanding of employment and associated law and employee relations issues as at the date of publication. Jaluch Limited, or any of its directors or employees, cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on all individual matters.

to top button