Receiving a tribunal application from an ex-employee presents broadly 2 options 1) fight it, 2) settle it. Given that fighting a tribunal can cost upwards of £5K its sometimes tempting to settle on economic grounds, even if you think you’re going to win. Unfortunately though that might just send a message to other employees that you’ll always ‘pay out.’ Given my experiences in the Birmingham Employment Tribunal last week, I’ve been giving some thought to the fighting option and why sometimes it makes sense to fight, despite the cost.
Fight, fright or flight? Receiving a tribunal application from an ex-employee presents broadly 2 options 1) fight it, 2) settle it. Given that fighting a tribunal can cost upwards of £5K its sometimes tempting to settle on economic grounds, even if you think you’re going to win. Unfortunately though that might just send a message to other employees that you’ll always ‘pay out.’ Given my experiences in the Birmingham Employment Tribunal last week, I’ve been giving some thought to the fighting option and why sometimes it makes sense to fight, despite the cost.
It wasn’t an event I was particularly looking forward to, I’ve been to a couple of tribunals in the past, but never as a witness under cross examination. The first person I saw on arrival to day 2 of a 4 day tribunal was the Claimant. Last time I saw him was during his appeal hearing when (as the client’s retained HR advisor via myHRdept.co.uk) I decided to uphold the employer’s decision to dismiss him on grounds of redundancy. We nodded to each other in passing and I went into a private room with my clients, their barrister and other witnesses.
The tribunal commenced at 11am, the judge as is often the case these days, was sitting alone. Prior to cutbacks there would have been a panel of 3 – an employer, a trade unionist and the judge. The court room on floor 13 (lucky for some) of the tribunal building was lighter and less sombre than I had remembered. The judge was polite but not overly formal. At the back of the room sat the witnesses and on the front bench my client’s barrister and the Claimant who had decided to represent himself.
Over the course of the day one of the Claimant’s colleagues appeared as a witness (2 hours on the stand), then after lunch the manager who carried out the initial decision to dismiss the Claimant gave evidence and then at 3pm it was my turn. I read a declaration that I would tell only the truth and settled into my seat, to my left was a copy of a statement I had prepared some days before the hearing and a 370 page bundle of documents. Over the course of the next 45 minutes or so the Claimant asked a number of questions, made a number of statements and had me flicking backwards and forwards through the pack to read parts of various documents to the judge.
Once it was over the tribunal adjourned for the day and we all went about our business, in my case after a large glass of medicinal wine at a hotel across the road. Actually the experience wasn’t as scary as it might have been, albeit part of the reason for that was that I was well prepared, I genuinely believed that I’d made a sound decision at the Claimant’s appeal last year, and we had excellent written notes of the basis for the decision and of the redundancy consultation process. This is not a forum to enter into underprepared.
I’d been told that the Birmingham tribunals tended to judge more sympathetically toward employees and so despite my client having (I believed) a strong case, I was nervous about the outcome. 2 days later I was pleased to hear that the judge had found in my client’s favour.
It was the right decision, but one that was arrived at following considerable time, costs, barristers, solicitors etc. The advantage for my client though is that they are on public record as having fought their corner and won. Future ex-employees will think carefully about taking them on, and that’s a thing that is worth paying potentially quite a lot for. Now, this particular client has a lot of employees and, frankly, if you had just half a dozen staff, then spending tens of thousands to make a point to the remaining 5 probably makes no sense at all. In that case an economic settlement makes much more sense.
So, in order to decide whether to fight or settle, here are the key questions….
- Are you likely to have other cases brought against you? (yes = fight, no = settle)
- Have you got a strong case? (yes = fight, no = settle)
- Have you settled other cases recently? (yes = fight, no = settle)
- Can you settle the case for less money than it would cost you to defend it (factor in your time and legal costs)? (no = fight, yes = settle)
Should you decide to fight, here are my top tips for how to go about it:
- Be sure about your case – ask myHRdept or your HR supplier to have a robust look at it, and if there are vulnerabilities your fight/flight assessment will change – generally a higher than 50% risk of losing would make a settlement route seem preferable
- Be aware of the amount of time you will need to devote to preparing your witness statement and for the hearing itself. Just reading the bundle in my case took the best part of a day (and you absolutely must do this)
- Don’t be tempted to represent yourself, get a barrister. You wouldn’t try and fix your own broken down car now would you, so why would you expect to be able to effectively present at a tribunal. It’s what barristers do for a living.
- I said a barrister, not a solicitor. Do not confuse the two, barristers earn their living at legal hearings, solicitors in the main don’t, in fact a solicitor will just instruct a barrister anyway (and then charge you a hefty mark-up) so you might as well go direct to the barrister in the first place via the Direct Access scheme. For most employment cases you won’t need a solicitor at all, the best combination is a good quality retained HR company (i.e. with no incentive to rack up hours) who knows you + a local barrister for preparing your case and representing you.
- Barristers come broadly in junior or senior categories. Either will have cheaper day rates than most solicitors, so don’t be too frightened to take on a heavyweight, but junior barristers should be fine for lower value cases.
- Your barrister will help you draft your witness statement and (earlier in the process) the response to the tribunal claim (on a form called an ET3.) It is best to let the barrister draft these but make absolutely sure that everything on the statements is true, dates are accurate and nothing important is missed.
- Disclose everything to your barrister in good time before the hearing. It may be that you haven’t been perfect in respect of the case but you do not want an example of your imperfections coming out of the blue while you’re on the stand. If we know about the issue it can be covered in the witness statement and you can be prepared to answer questions on the subject.
- Before the hearing read through all of the witness statements including the Claimant’s and any documents in the bundle that are cross referenced.
- When you get to the hearing and are called, be calm and answer the questions asked, don’t feel the need to embellish your answers unless a straightforward ‘yes/no’ answer does not give enough context to explain it – in which case addressing the judge as ‘Sir’ or ‘Madam’ ask for the opportunity to provide more information in order to contextualise your answer.
In 25 years of practicing HR in some of the world’s largest and best known companies, and in 15 years of running myHRdept with hundreds of client companies I can honestly say that I have never lost a tribunal case. I have settled some though!
Bill Larke runs (with his wife) myHRdept, an HR outsourcing business of 15 years standing with clients nationwide. He is also a former HR Director from Coca-Cola Enterprises and his earlier career spanned United Biscuits and British Steel.