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Making it more difficult for employees to take a case to Tribunal (Jan. 2011)

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Human Law Ezine - January 2011

Making it more difficult for employees to take a case to Tribunal 

The government is considering calls for employees taking a company to tribunal to pay a fee which would be refunded if the claimant won the case. Might this discourage some claimants and save employers the cost and disruption of employment tribunal claims?

Ten years ago the Labour Government looked into the idea of implementing a fee-based system but did nothing about it. Now the Coalition is considering the introduction of a fee of anywhere between £30 and £500 in response perhaps to the 56 per cent rise in claims over the past 12 months.

Figures show that only 0.13 per cent of cases last year involved a cost order against an employee, while all other hearing costs were paid by employers, even if they were the successful party!

Sense did seem to prevail however as roughly 60 per cent of cases were settled outside of an employment tribunal. When you realise that it can cost a company around £8,500 to defend itself in a Tribunal whereas a pre-hearing settlement costs closer to £5,500 it’s perhaps surprising more aren’t settled this way.

In our opinion Employment Tribunals create red tape and waste for both employers and employees and should be avoided at all costs.

Whilst the Government may be considering a fee-based system to discourage employee claims I wouldn’t rely on them making a change quickly, if at all. Instead organisations need to have in place adequate systems and procedures to deal with employee disputes and conflict, and in my view that should be focused on keeping disputes out of court. 

So how can employers avoid Employment Tribunals?

  1. Be firm, but fair 

    Seek to conduct any form of disciplinary action in the most dignified but firm way possible. Too often disciplinary or redundancy proceedings can be conducted in a personalised man-ner and add fuel to the fire of the stress of an employment legal action. However you must try to avoid weakness as you run the tactical risk of being outmanoeuvred in any negotia-tions. 
  2. Consider the personalities involved 
    Consider the personalities and the characters of the staff involved. Organisations don’t al-ways do much preparation when they are taking disciplinary action against employees and do not consider how their actions will impact on the employees and what reaction they can expect. 
  3. Keep calm 
    Maintain consistency as the dispute goes on. In my experience many organisations initially take a relaxed approach, being nice as they see it. As time goes on and things aren’t settled tempers get frayed and the relationship between the partied involved starts to break down. This deteriorated can create a negative spiral which damages both parties.
  4. Start with the end in mind
    Have a clear and equitable outcome in mind. Many organisations may have an objective in mind namely the sacking of a member of staff or a redundancy, but is this is a just outcome? Firms should look at creating ethical outcomes which take into account the commitment and loyalty of staff.
  5. Heed the law
    Ensure the law is complied with and the relevant legislation is respected. If you don’t you are far more likely to find your organisation facing a Tribunal claim and it going all the way.

Following this advice will make it more difficult for employee to take a case to an Employment Tri-bunal because in essence there won’t be a case. Problems will have been dealt with at an early stage in a fair and equitable way and an out-of-court settlement achieved.

For more details on how you can prevent the escalation of employee disputes read our 14-page guide to Keeping Away from Employment Tribunals and Court Room Battles. The guide explores fully the different options open to you in resolving disputes – and their costs. It also includes a 6-point plan you can follow for effective despite resolution which could save thousands on every dispute you ever face. Download your copy here.

For advice on solving employee disputes without going to court and for training in dispute management skills for managers contact Justin Patten here

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"Whilst Justin has a wealth of experience of the law and procedures involved in employment matters, I believe his greatest asset is his absolute genuine concern in taking the right course of action for his client. He is both sensitive and perceptive and, during a difficult time made the process less onerous and stressful for me."
Council Employee 
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