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What if an employee took you to an Employment Tribunal?

A July 2017 Supreme Court ruling found the Government had acted unlawfully when it introduced Employment Tribunal fees in 2013, which meant employees were having to pay up to £1,200 to take their employer to tribunal.

As explained on the Acas website (the independent organisation that “provides free and impartial advice to employers and employees on all aspects of workplace relations and employment law”), Employment Tribunals are “an independent judicial body established to resolve disputes between employers and employees over employment rights. The tribunal will hear claims about employment matters such as unfair dismissal, discrimination, wages and redundancy payments.”

If a decision goes in favour of the employee, the employer may have to reinstate them or pay compensation based on their financial loss. And although there can be limits, this does not apply in cases of discrimination. You might also have to pay back any benefits the claimant has received while taking their case to the tribunal.

Rise in employment tribunal claims

“An increase in Employment Tribunal claims is inevitable,” predicts Tim Forer, barrister in the employment law team at full-service commercial law firm, Blake Morgan LLP, “particularly low-level claims, such as disputes over holiday pay or wage deductions,” he says.

“Previously, having to pay would’ve put off many employees, even if their claim was valid. Research suggests fees prevented such claims, while the 2012 increase to two years in qualifying service to bring an unfair dismissal claim also had an effect,” he explains.

To mitigate risk, Forer recommends that employers comply fully with latest employment law, because legislation can change. “For example, the Employment Appeal Tribunal has recently confirmed that voluntary overtime should be included in holiday pay, depending on how regularly and for how long it’s been carried out. This could produce low-level claims that otherwise might not have been made.”

Past claims which were “struck out” because claimants did not pay their fees could now be reinstated, says Forer, while some employees might try to bring claims “out of time” by arguing that previously they couldn’t afford the fees.

Employment Tribunal process

Employment law specialist Tracy Worthington, partner at West Midlands-based law firm FBC Manby Bowdler, also expects an increase in Employment Tribunal claims. “They’re unlikely to return to pre-2013 levels,” she says, “but businesses must make sure their policies and processes are legal and that they follow them. Otherwise, employees may now be more inclined to issue a claim.”

Disputes over pay or dismissal or claims of discrimination are common reasons why employees bring Employment Tribunal claims. They must first refer the matter to ACAS for pre-claim conciliation, for which there is no fee. Acas works with both parties to try to resolve the matter without it needing to go to tribunal.

If that fails, the employee must issue Employment Tribunal proceedings within a specified time period, says Worthington. Then, the Employment Tribunal sends the employer a copy of the claim, with a response form, which must be completed and sent back within 28 days (employers can respond online). Resolving disputes through the employer paying a settlement agreement remains a popular way to resolve employment disputes, says Worthington.

Hearing and costs

If the parties cannot resolve the claim between themselves or through ACAS, it goes to a final hearing in the Employment Tribunal, where either party can represent themselves or instruct a solicitor or barrister to represent them. The hearing takes place before an Employment Tribunal Judge, unless discrimination has been claimed, where the hearing takes place before a panel of three, one of whom is an Employment Tribunal Judge.

As Worthington warns, having to deal with Employment Tribunal claims can take up a lot of your time. “You must respond to the claim, collate your documents, prepare witness statements and prepare for and attend the final hearing. The actual hearing is also open to the public, including the press, which can result in adverse publicity.

“If the decision goes against you, there may be an order to pay compensation. The basic rule is each party pays its own tribunal costs, but in certain circumstances the tribunal can order one party to pay the other party’s costs. The whole process can be stressful, so my advice to employers is to mitigate risk by following legal policies and processes – and seek professional legal advice as soon as a dispute arises.

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