HR Support for litigation as tribunal claims rocket

05/05/21 Tribunal claims are on the rise and are expected to peak when furlough comes to an end.

HR press Personnel Today reports an increase in litigation since 2016 (with particular rises in IT and construction) and predicts, in myHRdept’s view quite rightly, a further surge in claims as furlough comes to an end, and firms lay off furloughed staff.

Since the abolition of tribunal fees pre-Covid, we’ve seen claims rocket, and cases that would have reached tribunal in a few months now take a year or more to conclude. Employees are increasingly willing to challenge their employers decisions in court, and certain types of cases are showing a marked increase. Leading the pack are wrongful dismissal (contractual breach claims often brought by employees without the required 2 years’ service needed to bring unfair dismissal claims) and discrimination, both of which have increased 17% over the period. Workplace harassment and constructive dismissal claims have also increased, by 13% and 10% respectively.

In 20 years of running myHRdept we’d not seen a single interim relief claim (where an employee asks for a rapid pre-hearing to order their reinstatement prior to a full case hearing,) but we, and other practitioners are reporting a rapid rise in these. With perhaps thousands of furloughed employees sat at home contemplating their impending redundancy, we suspect we’ll see many more interim relief claims. These have a major impact on employers who may have to continue paying a formerly dismissed employee for a year or more, until the case is heard by a tribunal.

How can employers protect themselves against claims?

The first answer is, they can’t. The right to bring a claim belongs to all employees and workers, but here are our top tips on how not to end up on the losing side of one.

Behave reasonably and ensure your employees and managers do

The overriding obligation on an employer is to behave reasonably, and take steps to ensure employees and managers do too. This will mean providing some training on important policies (Dignity at Work, Equal Ops) and taking early steps to address behaviour that falls short of these.  This will help combat discrimination and harassment claims, where the employer can be held liable for the actions of its employees.

Keep excellent records and stick to your policies….

…of any processes that lead to a dismissal, a disciplinary or performance warning, a grievance or a change in contractual relations….and where you have a policy, follow it!

Get HR support

All but the smallest employers are expected to invest reasonably in support. myHRdept’s support packages start from a little more than £150 a month for very small organisations, other providers are available. Ignorance is rarely a defence, and a good relationship with a reputable HR company to help you achieve change in the safest way possible, is a more sensible investment than proceeding without advice and hoping for the best!

If you do receive a claim, or an invitation from ACAS to engage in early conciliation, here are our tips:

Don’t panic

When you receive a claim or contact from the ACAS conciliation team – DON’T PANIC. This is merely the start of what will inevitably be a long process. Don’t be rushed into making settlement offers, take the time to objectively evaluate the employee’s case first.

But do note the key dates and make sure you stick to them

ACAS and the tribunal service will set out response dates which you must adhere to. Enter the dates in your calendar and give yourself plenty of time to prepare your responses.

Consider getting advice if you don’t have it already

A lawyer or a competent HR company with experience in litigation will be invaluable in helping you analyse your risks and possible responses, and help you negotiate a reasonable settlement if sensible. myHRdept will liaise with ACAS, or your employee’s solicitors on your behalf, removing a lot of the stress. An HR company may want a longer term contract (though that may not be a bad thing – see above) but a lawyer is likely to far more expensive for the case alone.

Be polite to ACAS

The conciliation service treads a middle ground, and it’s natural to feel nervous about an impending claim against you, but it’s not their fault, and it makes sense not alienate someone who might be able to broker a settlement. ACAS are not your enemy, but they’re your friend either.

Without prejudice

If you write to or speak to ACAS, and you don’t want your email or conversation to be producible in tribunal, make sure you start every communication with ‘Without prejudice.’  If you’re making a reasonable attempt to settle for a reasonable sum, and might want to draw this to a tribunal’s attention later (to show that the Claimant behaved unreasonably), use ‘Without Prejuduce, Save for Costs.’

When contemplating a settlement….

…consider all of the aspects. What are the allegations? Is there a risk you could be found wanting, through procedural errors or otherwise? What evidence does the employee say they have? Consider also the costs and time involved in fighting a claim all the way through to a tribunal. Both can be considerable, and while it’s very rare to get your costs back, you’ll never get your time back!

Make sure that a settlement is conditional upon the employee signing a carefully drafted ‘COT3’ legal agreement. These include confidentiality and non-disparagement clauses and a written acceptance that neither party accepts it has done wrong. COT3 agreements are only valid if lodged with ACAS.

Consider waiting for the ET1 (formal claim form)

Where you’re unsure of the strength of an employee’s case, or where you’re certain you’ve done nothing wrong (and everything right) consider waiting for the employee to lodge an ET1 with the tribunal service. Many a casual litigant gives up at this stage, as the process requires work, costs or both. If completed, the ET1 should describe the evidence the employee intends to rely on, which will further help you assess the strength of your own position and evaluate whether settlement appears a sensible route.

This article was published myHRdept, an HR outsourcing service that routinely deals with conciliation requests and tribunal applications, and that advises employers on tribunal responses and proceedings.

If you’re thinking of outsourcing your HR or employment law needs, why not contact myHRdept? Call us on 01628 820515 to discuss your requirements or contact us and we’ll call you back.

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