HOW TO LOSE AN EMPLOYMENT TRIBUNAL CLAIM
Why have I written a blog to tell you how to lose a tribunal claim? Firstly, because there are countless articles out there telling you how to win a tribunal clam, and we like to do things differently. Secondly, because many of the things that employers do that they think will help them to win a tribunal claim can actually be counter-productive.
Have as many policies and procedures as possible
Most lawyers will encourage clients to have as many policies and procedures as possible. They also make those documents very long to try to cover every eventuality. The result is that clients end up with a large pile of very long documents which contain lots of things that the employer has to do in different scenarios and which no one ever reads. The first person to read it could well be an employee who you have dismissed who points out that you have failed to comply with your own policy.
Of course, policies and procedures have there place but, when writing them, make sure that they are useful tools and not simply rods for disgruntled employees to beat you with. I struggle to think of a case when an emloyer has lost a claim because they didn’t have a policy but I can think of many cases that an employer has struggled to defend because they did not comply with their own policy.
Our retainer service provides access to policies and procedures that will help you to comply with employment law rather than just create hoops for you to jump through: Keelys LLP Employment Solicitors in Lichfield | Employment Law Experts
Make sure you have a paper trail
Lawyers will usually encourage you to document your decisions carefully. That is good advice but you should ensure that careless comments are not put in writing. Employees who have been dismissed are increasingly putting in subject access requests in the hope of finding a “smoking gun” that will help their case. The problem is that you would then have to disclose all the data that you hold on the employee. That could include scribbled notes and even things like messages on Whatsapp, even if they are stored on employees’ personal devices: How do we find and retrieve the relevant information? | ICO. You should therefore ensure that you do not put anything in writing (including electronic messages) that you would not want the employee to see.
Patience is usually a virtue but, in HR, it can be dangerous. You may be considering having a difficult conversation with an employee, or even terminating their employment. If you put that off, you lose control, because all sorts of things might happen before you get round to having the conversation.
Patience is particularly dangerous when an employee is approaching two years’ service, since that is the qualifying period for unfair dismissal. Some employees will even use tactics such as going off sick in order to reach two years’ service. You should be alert to that and, if you are considering terminating someone’s employment, make sure you do so before they reach two years’ service.
Follow a formal procedure when you don’t need to
Before an employee has two years’ service, you can terminate their employment without following a formal process. Many employers like to do that because they consider it good practice. The problem is that, rather than engage with the process, an employee may try to derail it by going off sick, submitting a grievance or making a subject access request. You may then wish you had never started the process and our preference would be not to follow a formal process when an employee has less than two years’ service. Is it really best practice to do so if you have already made your mind up to terminate their employment anyway?
Have as many allegations or criteria as possible
In a disciplinary process, employers often think that the more allegations against the employee the better. In my experience, that merely creates the impression of a witch hunt and gives the employee (or their representative) more to challenge. It is usually better to focus on the main allegation(s).
Similarly, in a redundancy case, employers often think that the more selection criteria they have the better. It is preferable to have a few (or even just one) robust and objective criteria than lots of more subjective criteria which are vulnerable to challenge.
Use a barrister
Employers often think that using a barrister is a guaranteed way to win their case. Barristers certainly have their uses and we sometimes instruct them ourselves. However, if you are using a barrister make sure that they have plenty of experience in employment work and, preferably, experience in the particular type of claim being brought (e.g. whistleblowing).
Even if you use an experienced barrister, they will only be as good as the instructions you (or your solicitor) gives them, so make sure they are fully briefed. I usually represent clients myself which can be an advantage in cases where I dealt with the dismissal because I already know the case inside out.
Have as many witnesses as possible
Clients often think that the more witnesses they bring to a hearing the better. At best, that results in a waste of time and, at worst, it results in witnesses contradicting each other and undermining their credibility. Make sure you know what the key issues are in the case and then bring just enough witnesses to cover those issues. In an unfair dismissal case, the key witness will be the person who took the decision to dismiss and there will usually be no need for anyone else to give evidence for the employer.
Never admit any shortcomings
Employers tend to be reluctant to admit any failures. However, no one is perfect. If you have got something wrong, it is far better to admit it rather than to deny it, which will just undermine your case more generally. Sometimes, it can even better to concede liability for part, or all, of a claim. If you persist in defending a hopeless case, that will antagonise the tribunal and, when it comes to awarding compensation, they will not be sympathetic towards you.
Delay the hearing
Employers are usually in no rush to get to a tribunal hearing and there are various tactics you can use to delay it. However, that can come back to bite you. There are already long delays in the tribunal system. If you add to those delays, you might find that, by the time you get to a hearing, your key witness is no longer employed by you. Even if they are, they may struggle to remember events that took place a long time ago. It may therefore be better to keep the case moving forward and get to a hearing sooner rather than later.
Don’t take advice
The single best way to lose a tribunal claim is not to take legal advice! The second best way to lose a tribunal claim is to take advice from someone who is not an expert. All of our employment solicitors are experts with at least 15 years’ experience. Our employment support service gives you unlimited access to that experience for a low monthly fee.
Please contact me if you would like a quote: firstname.lastname@example.org