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Employment claims on the increase
Employment Tribunal fees were abolished on 26 July 2017 and a significant increase in claims is already being observed, just as there was a major depression of claims when the fees were introduced in 2013. Employers will also need to contend with late claims being brought by former employees if they can show that it was the payment of fees that stopped them bringing claims in the first place.
So how do employers protect themselves against this pro-employee climate?
Well, taking 5 basic steps can help considerably:
1. Employers need to make sure employment contracts and staff policies are “fit for purpose” to minimise the scope for dispute.
They need to make clear what is expected of employees and how performance, misconduct and absence issues will be addressed. Are procedures fair and ACAS guideline compliant? This should make for reasonable and consistent treatment of staff. With employment law, a correct and fair procedure is often as important as the reasons for the action taken.
2. Employers should refresh key managers’ knowledge of what constitutes fair process.
They should ensure that managers receive the necessary training about common workplace problems including disciplinary and discrimination issues to minimise the risk of error leading to unnecessary disputes and costly claims. Discrimination law in particular is very complicated and inadvertent transgression common.
3. Employers need to take grievances and appeals seriously and not be afraid of self critical assessment.
Employers do make mistakes and realising and accepting that early can often pre-empt unnecessary disputes and litigation. They should be prepared to uphold grievances and appeals, if appropriate.
4. It is always good to talk!
When differences arise, it is usually helpful to engage in “without prejudice” discussions (a.k.a. “protected conversations”) to see if a resolution can be found.
The new “protected conversation” regime means it is not necessary for a dispute to have crystallised before a without prejudice conversation can take place but be careful that there are not any discrimination issues as that would remove the without prejudice protection and allow the employee to refer to the discussion as evidence that they are no longer wanted. Of course, it will not always be appropriate to “throw money” at an issue and it can be dangerous to set a precedent that this happens whenever employees complain. If agreement is reached, it must be recorded in a settlement agreement which must comply with statutory requirements (including the obtaining of independent legal advice), otherwise the deal will be ineffective.
5. If an employment dispute cannot be resolved internally, you should not close your minds to alternative ways of resolution.
Often, employers will cease to communicate with employees once they have left. If they are confronted with a stubborn dispute which is unlikely to go away, they can resort to mediation which would involve an independent facilitator helping to “bang heads together”!
An informal “without prejudice” meeting can also often find a solution. With the new ACAS Early Conciliation regime, the claimant cannot start proceedings unless they have been in contact with ACAS about the possibility of conciliation. Neither party can be forced to engage in the conciliation process but there seems to me to be little harm in having a go. And you could end up with a satisfactory settlement.
In conclusion, there is plenty that can be done to discourage the progression of disputes to uncertain, costly and time wasteful litigation. And that should suit employers and employees alike.
Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.