How to deal with an employment tribunal

Claimants arrive the employment tribunal in Croydon. Photo: Anthony Devlin/PA Archive/PA Images

The employment tribunal is not something any employer particularly relishes. Omar Khalil provides some expert advice for HR professionals facing a tribunal claim and, ultimately, a hearing.

An employment tribunal should be viewed as the forum through which all of an employer’s decision-making prowess, and the nature and integrity of that decision making are scrutinised.

Inevitably that scrutiny focuses on the evidence of what has happened. People’s memories cannot be relied upon, so it is important to have a “paper trail”.

However, it’s those very paper trails that can also be the source of many issues. With an increased awareness of data protection rights, an employee’s “subject access request” forces employers to give full disclosure of every email and document about an employee, often going back many years.

Avoiding an employment tribunal

To avoid being involved in a tribunal with this disclosure of information in mind, employers and line managers must be careful and think before they write. Most people are unguarded when writing emails, they might write something casual or flippant which could end up making or breaking a case.

Say to yourself: “What I’m saying in this email might one day be disclosed publicly or in a court room. Would I be able to justify and support what I’ve just said?”

A good practice to adopt as a business is regular data cleansing. Review all your documents, data and information and decide whether or not to keep hold of it. There are some good reasons to hold a certain amount of data for legal reasons, but businesses must minimise more of their data. For example, when you’ve recruited someone, you don’t hire the other 10 people who applied for the job – at some point you should delete their data.

It’s also essential to offer people training, especially your line managers. Diversity training, training on the fundamental principles of UK employment law in relation to management, discipline and grievance, and training on managing absence are all important.

It is perhaps particularly paramount that line managers receive training on disability discrimination. The number one issue that both small companies and large multinationals are currently seeking advice on is sickness absence, in particular in relation to mental health. This is a very complex matter as it brings in disability discrimination legislation – especially reasonable adjustments – and managers should be aware of the multitude of issues to be considered when dealing with this.

Preparing for an employment tribunal

It’s advisable to seek professional help from a law firm or consultancy before a tribunal. A mentoring session with the witnesses who are going to give evidence is a good way to prepare them for the day. This session will clarify expectations and give guidance on the process and procedure of the tribunal. Anything from what terminology will be used, the process of giving evidence and what happens after you give evidence, will be discussed.

One of the best ways to prepare for a tribunal is to attend a mock tribunal training programme. This re-enactment of a real-life tribunal is an excellent way for people to not only understand what an employment tribunal entails, but in particular to experience the level of in-depth questioning they can expect.

Consequences of a negative outcome

When a tribunal has a negative outcome for the employer, they must expect to pay financial compensation or awards. In unfair dismissal claims – the most common claim in the UK – there is a cap on the damages of one year’s gross salary.

In discrimination claims financial compensation is uncapped and can include an ‘injury to feelings’ award, the highest scale of which can lead to substantial awards. Discrimination claims are also pursuable against a named individual such as line managers or even HR professionals, not just the employer. In case of a negative outcome, an award can be made against both the company and the named individual.

A negative tribunal outcome can also have an adverse effect on publicity. Especially in discrimination cases this can be very damaging to a company’s reputation and can affect their ability to tender for or win more work.

One consequence of a tribunal that has gone badly which is often overlooked, is the subsequent impact on management, HR and witnesses involved in the process. It is not uncommon for those employees who have been involved in a tribunal to be impacted by the experience, sometimes being signed off with stress afterwards.

It can also adversely affect employee relations among those that are left to pick up the pieces. Some employees might be considering raising their own grievance, or be subject to a disciplinary process because of issues that have arisen during the tribunal.

Alternatives to the employment tribunal

It’s important to point out that a large number of employment disputes are resolved before going to trial. The parties either reach an agreement through Acas, through an independent workplace mediator or privately.

In some cases, tribunals might also offer a judicial mediation process, facilitated by a judge. For example, when the person pursuing a claim is still employed, so having to go through a multi-day adversarial process is not deemed the best option.

Omar Khalil

About Omar Khalil

Omar Khalil is head of legal at Make Business, the subscription service of Make UK, formerly EEF. As of September 2019, Mr Khalil will be a full-time judge at the Ministry of Justice, sitting at the Croydon Employment Tribunal.
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