Top tips for avoiding the emplo
The employment tribunal system is in a state of collapse, writes Nigel Tillott, Managing Director of Davies and Partners' Gloucester office. The last quarter for which statistics are available gives an idea of the problem. Compared with the previous quarter, receipts of new claims were up 165 per cent, disposals of claims were also up, but only 56 per cent and the increase in the numbers of outstanding cases was 130 per cent. In July 2013, the government introduced employment tribunal fees for the first time, such that for a typical case someone bringing a claim would have to pay total fees of over £1,000 to have the matter heard. Not surprisingly, the number of claims reduced dramatically to about a third of the previous levels. After a number of unsuccessful attempts, the unions managed to get the government’s decision overturned and fees were abolished in July 2017. Not surprisingly, claim levels have risen dramatically. In the meantime, the government had significantly cut tribunal resources. Consequently, it is no surprise that the system cannot cope with the influx of claims. To create a picture of the landscape: • Some tribunals have been closed, others have been merged with courts; • There are long delays in holding hearings and cases are postponed, frequently at the last minute; • Whilst hearings may be delayed for many months, tribunals often require the parties to fully prepare the cases early, thus meaning that significant costs are incurred at an early stage; • There are insufficient judges to hear the volume of cases. Case are postponed so often in the 24 hours before they are due to be heard, that we now tell clients to expect this. It would appear that tribunals list more cases for hearing than they have judges, on the statistical basis that a significant percentage of claims settle. I have a discrimination case running in London which has twice been postponed by the tribunal on the eve of a procedural hearing, such that the initial hearing, is not scheduled to take place until 18 months after the claim was issued and there will inevitably be a six-
month delay or more before the final hearing. I had a case running in Reading. The day before the hearing, I was contacted and told that there was no judge, but they may be able to hear the matter in Watford or Bury St Edmunds, if I could get all the witnesses there for the next day. We were later told there was no judge available in Watford or Bury St Edmunds either. The official time it takes to dispose of a straightforward case is six months. This though counts all the cases that have settled or withdrawn somewhere along the way. If we had a statistic on time it takes to get to a full hearing this would be far longer. In the meantime, costs continue to rise, especially as tribunals require us to do a lot of the preparatory work early on in the progression of the case. So, what can be done to avoid the meltdown? I have developed 10 top tips for avoiding it: 1. Plan. Better to plan carefully any action against an employee and take legal advice at the time, rather than take the action in haste and repent at leisure; 2. Ensure contracts and policy documents are in place and up-to-date. If contracts are in place, it reduces uncertainty and arguments about what the terms are. If an employer goes to a tribunal without employment contracts in place, this amounts to a big black mark and, in many instances, can lead to an award of up to four weeks’ pay against the employer. If key policies such as equal opportunities policies are not in place, it makes it far more difficult to persuade a tribunal that discrimination hasn’t taken place; 3. Educate your managers. Employers are nearly always responsible for the actions of their employees, whether or not they knew of them or endorsed them. An employer which has taken employment and, in particular discrimination, seriously by training managers might just have a defence if a manager goes rogue; 4. Confront the problem early. Often employers know that an employee is not performing or are unhappy with his or her conduct early on, but do nothing about it. Later, frustration boils over and then action is taken quickly, which is later regretted or the employer leaves it too late to undertake a potentially lengthy performance improvement process. If the issue is addressed early, by the time the frustration
28 | February 2019 | www. punchline-gloucester .com
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