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avoiding successful tribunal claims

14 January 2010

According to The Tribunals Service there were 151,000 employment tribunal claims in the year 2008/09. Whilst the number of equal pay and sex discrimination claims fell from the previous year there were rises in cases for unfair dismissal (up 29%); breach of contract (up 31%); redundancy pay (up 48%) and redundancy – failure to inform and consult.

 It is not always possible to avoid a tribunal claim. However, there are steps that can be taken to try to reduce the likelihood of a tribunal claim being brought and to increase the chances of successfully defending any tribunal claim that is brought. Below are some suggestions of steps that can be taken to assist in dealing with potentially contentious employment issues.

1. Act Promptly

Unnecessary delay can lead to very significant difficulties arising in a wide variety of employment situations. Many tribunal claims will be determined by adherence to good procedures. For instance, the length of any inappropriate delay in investigating potential disciplinary or grievance allegations will be considered by the tribunal when deciding the issue of unfairness. Delay may also prevent an amicable solution to grievances and increase the period of a sickness absence.

Care should still be taken when using independent third parties to conduct investigations. If using independent third parties, keep track of progress and ensure there are documented attempts at ensuring a reasonable timetable is adhered to and that the reasons for any delays (eg witness availability) are recorded.

2. Policies/Procedures

It is essential that policies are regularly reviewed and are kept up to date to ensure they are legally compliant and reflect the organisation’s then current practice. Policies should then, wherever reasonably possible, be followed.

Following an appropriate procedure is an essential part of ensuring that employees are treated reasonably and of successfully defending tribunal proceedings. It is important to regularly review the procedure that has been adopted as circumstances develop.

3. Training Line Managers

Managers should be properly trained on all policies which they are going to be using in their role. Training should be given before the manager actually needs to follow the policy in question and their knowledge should be regularly refreshed.

4. Keep Proper Records/Notes

Written records should be kept of all steps taken in a particular procedure. They should be as full as possible.

Relevant documents will be closely examined in all tribunal claims and their contents are often critical to the outcome of hearings. All documents which are relevant to a claim i.e. documents which support or detract from the defence of a claim or which support or detract from the Claimant’s claim must be disclosed.

Hearings can take place many months after the events in question and, in the absence of written records, it may be difficult for a witness to accurately remember the details of discussions that have taken place. Even handwritten notes in a work diary can be helpful.

Proper records are also essential as management tools, for instance in dealing with attendance issues.

5. Keep an Open Mind

When dealing with disciplinary matters or grievances it is important for the employer not to jump to conclusions about what has or has not taken place. This applies to how initial concerns are handled – just because some action is suspicious does not mean that a negative explanation is the only explanation. Consideration needs to be given as to whether it is necessary for a full scale disciplinary investigation to be instituted when a suspicious event occurs or whether a low key enquiry for further information from the employee might clear up the issue or at least indicate the direction that further investigation should take.

The outcome of disciplinary proceedings should not be prejudged no matter how strong the evidence available before the hearing appears to be. Those making decisions need to be certain that they have understood the representations put forward by, or on behalf of, an employee. Sufficient time should be allowed to read and consider the notes of a disciplinary meeting, and the other relevant information, before coming to any decision. Also consideration should be given as to whether any further information is necessary to reach a proper conclusion.

6. Gain Appropriate Information

Investigations need to be sufficiently rigorous to ensure that appropriate decisions are made. Avenues of enquiry that arise during the investigation should not be ignored. Steps should be taken at an early stage to secure any evidence that might otherwise routinely be destroyed. That may mean making enquiries before the full investigation is under way. A statement taken a few days after the events in question may carry more weight with an employment tribunal than one taken months later.

This article was first published in Fire Magazine

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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