Blog: Menzies Law Guide to reducing your risk of getting taken to Employment Tribunal 

In my previous blog I talked about what you should do if an Employment Tribunal Claim (ET1) lands on your desk.  With the rise in Employment Tribunal claims, this is an eventuality that many businesses will face at some point.

In this blog I want to talk about the steps you can take to minimise the chances of a Tribunal claim from one of your employees. Whilst there is of course no way to guarantee that you won’t receive a claim, there are certainly things you can do to reduce the risk and protect your business.

Engaged, not exploited

At Menzies Law we have represented companies with a wide range of outlooks on employing people.  At one end of the spectrum is the ‘exploiter’.  We’ve (sadly) had clients who would be the first on the phone to us when a new piece of legislation was announced with the same question: “How do we get around these stupid new rules?”. Their approach was to get away with as much as possible and their employees were an unhappy bunch. These are the types of businesses who invariably have at least one Tribunal claim ‘on the go’ at any one time, together with regular advice required on grievances, sickness absence and disciplinary hearings.  The unhappy workplace cocktail.

At the other end of the spectrum are clients who spend a lot of time thinking about and improving their employee engagement.  They set up employee forums, listen to and act on feedback, and generally make their employees feel valued.  As a result, their employees are generally happy and motivated. These employers, in our experience, almost never receive Tribunal claims.

Then there are those who sit somewhere in between; those business who sometimes find an ET1 claim form on their desk but not regularly.  These can materialise for a number of reasons, probably with no recognisable pattern to them.

Procedural justice

Having acted for both employers and employees, one thing we can say about how to reduce the risk of claims is to give your employees meaningful grievance and disciplinary experiences. If an employee feels aggrieved about something at work, often about a colleague or line manager, they want to feel like their complaint has been taken seriously.  If they feel that their concerns have been listened to and properly investigated then the likelihood of them then bringing a Tribunal claim is significantly diminished.  Employees who feel like their concerns have been brushed under the carpet, ignored or whitewashed are far more likely to bring a Tribunal claim, typically a constructive dismissal claim.  Sometimes they may add on a discrimination claim too, if they can possibly think of one.

The risk of a claim therefore has a close connection with whether your employees feel they’ve been ‘heard’ and whether they have experienced ‘procedural justice’ in the workplace.

On many occasions it is the ‘way’ that the employer deals with their grievance that is the catalyst for an employee submitting a claim.  A grievance can and should be viewed by an employer as an opportunity to avoid a claim.  If you get this bit right, the risk recedes, but get it wrong and you may well have just written the first paragraph of their claim form for your employee.

Again, with disciplinary hearings if an employee feels like they have been given a fair hearing then the risk of a claim recedes. If an employee feels like corners have been cut or that the outcome was a foregone conclusion then the risk definitely increases.

View things from a claimant lawyer’s perspective

Consider the following scenario: your ex-employee is sitting in the office of a ‘no-win no-fee’ claimant lawyer, trying to persuade them to take on their claim of unfair dismissal.  That lawyer will be assessing whether the employee has a better than 50% chance of success in the Tribunal.  If, as the employer, you conducted a comprehensive investigation, you sent the employee all the evidence in good time in advance of the disciplinary hearing, you allowed them to fully explain their version of events, you took the time to consider your decision (e.g. never dismiss in the disciplinary hearing without at least taking an adjournment to consider everything) and finally, you them offered a right of appeal to someone more senior, then how confident would the claimant lawyer be about taking the case on?  I, for one, would certainly not be advising the employee that they had a strong case.  The employee might feel very hard done by, but my legal view would be that the employer had done all the right things and the chance of a successful claim was definitely less than 50%.  And so if my law firm’s income depended on a better-than-evens chance of each case winning, I’d not be willing to agree to take it on.

Take advice early to head off claims

Taking legal advice is an investment worth making, and worth doing at an early stage.  It will ensure that you head off on the right path to minimise the chance of a successful claim.  And with the risks of being taken to Employment Tribunal now far higher since claimants’ fees were abolished, the legal, management time and reputational costs are just too high to ignore.

Here are our top 10 recommendations to reduce your risk of getting a Tribunal claim:

  1. Consider your levels of employee engagement.  Our experience has shown time and again that the better a clients’ employee engagement levels, the lower their risk of an Employment Tribunal Claim.
  2. If you do get claims more regularly than you’d like then analyse these claims for patterns.  Ask yourself: are our processes robust enough?  Do they need reviewing? Are your line managers following them?  Do they need (more) training?
  3. Urge your managers not to ignore employee complaints in the hope they will simply go away.  We’re often involved in cases that have been left to fester but which could have been resolved much earlier on and at less expense.  Get your line managers to think ‘prompt, objective, reasonable’!
  4. Treat grievances, whether formal or informal, as an early warning system.  This is an opportunity for resolution before it turns into a full blown dispute.
  5. When you conduct a grievance or disciplinary process, make it meaningful. Make sure the employee feels heard (even if you think they’re nuts, disagreeable or just over-reacting).  Let them ‘empty their bucket’.  Employees need to feel a fair process has been followed and that they’ve had the chance to let it all out.  Think ‘active listening’.  It’s very powerful.
  6. Train your line managers to conduct robust disciplinary and grievance processes and thorough investigations. Menzies Law offer excellent Investigations training. If you’d like to discuss this for your business, please just let me know.
  7. In a disciplinary hearing NEVER move straight to announcing the dismissal decision without at least an adjournment to consider the issues – and (more importantly) be seen to be doing so.  If it feels straightforward, reconvene after a few minutes.  Or simply send a decision letter the next day.  Whatever you do, avoid rushing into announcing a decision, since it will look and feel as if you’d already made your mind up at the start of the hearing.
  8. Except in the rarest of cases, make sure you offer an appeal.
  9. Recognise that you can’t win them all.  Sometimes there is nothing you can do to avoid a claim.  As it is free for an employee to submit a claim, they may think they have nothing to lose.
  10. If in doubt, get advice from an experienced employment lawyer early on. We do think that we can really help at this stage and, in many cases, avoid an Employment Tribunal claim landing on your desk.

Avoiding a tribunal is a complex issue. If you’re concerned you could be at risk of a tribunal, or want advice on a staffing issue you feel concerned about please contact me.

Anne-Marie Boyle
Partner

Email Anne-Marie or call 0117 325 0924