Top tips from QualitySolicitors experts Natalie Davies
and Richard Green
on what measures you can take as an employer if you are the subject of an unfair dismissal claim. This can be an expensive and time-consuming process to go through, so our experts outlines the steps you can take to ensure that you arrive at a positive resolution as quickly and as cost effectively as possible.
Tips for dealing with unfair dismissal claims as an employer:
Follow proper procedures
It may sound obvious, but it is critical that you follow proper procedures when dealing with employees as well as responding to unfair dismissal claims. As the employer, the onus is on you to ensure an allegation of unfair dismissal is properly investigated and you are expected to give the employee ample opportunity to air their grievance through an outlined process. ACAS provides clear guidance as to how disciplinaries and grievances should be dealt with by employers, and in the absence of any enhanced company procedure, is the bare minimum expected of the employer. As an employer, the burden of proof often lies with you to show that proper procedures have been followed and therefore to do so will allow you to minimise the chances of a claim being successful. Indeed a Tribunal can apply up to a 50% uplift on any award as a result of an employer’s failure to follow a proper procedure.
Be aware of the employee’s position in particular in relation to legal fees
Since the introduction of rules meaning that employees now need to pay fees to pursue a claim through the employment tribunal, the number of cases has reduced by 75% (since July 2013). This has had the affect of reducing the amount of unmerited claims levelled at UK companies. This change in the law has been labelled unfair to average workers as fees can be run up to £1,200 in some cases. As an employer, it is important to be aware of this because if an employee pursues a case in spite of these financial pressures it is clear they feel, or have been advised, they have a strong case.
Assess the cost benefit of out of court settlements
You may decide, even if you are confident of victory, that you want to settle out of court having balanced the commercial and litigation risks. The advantage is that you can avoid paying legal fees and investing too much of your organisation’s resource in challenging what may be a minor claim. However, beware as such actions could result in you setting a precedent that positions you as a company too willing to settle. Most companies will choose to challenge a number of cases. This can be as a point of principle for the purpose of protecting brand reputation, whereas other times it can simply be because it is unhealthy to be seen as a company that is too willing to settle too quickly and too often. A recently new introduction to promote early settlement has been ACAS Early Conciliation. It is mandatory for an employee seeking to pursue a tribunal claim to first contact ACAS and enter into Early Conciliation but as an employer you do not have to agree to this as well. However, it is worth bearing in mind in cases where the benefits of settling outweigh the benefits of defending.
Take emotion out of the situation
It is easy to feel aggrieved as a business owner/employer if someone is trying to make financial gain from levelling a claim at your organisation. It is critical that you take emotion out of the situation and plan your response in a calm, considered way. The companies that have the most success in defending unfair dismissal claims are those that seek legal advice before taking any action whatsoever in regard to the case.
Don’t be afraid of the ‘T’ word
Some clients allow themselves to be intimidated by the mere mention of the word ‘tribunal’ – they really shouldn’t be. If you have behaved in a fashion of a fit and proper business, history says that the tribunal will most likely rule in favour of the organisation rather than the individual. Going to a tribunal isn’t a sign that the tide is turning in favour of the litigant, rather that the tribunal wants to conduct a full review of all of the case evidence – allowing you as an employer the opportunity to showcase all the processes you have in place.