part TWO: Employers in the firing line

Adam Bernstein examines how to protect your business from employment tribunal claims being made against it

By Adam Bernstein |

Published:  09 April, 2018

Following a recent Supreme Court case employees wanting to bring claims against their employers can do so without having to pay any fees. So what steps do firms need to take to protect themselves?

The first thing to note is that there are no hard and fast rules as to how to protect a business against employees making tribunal claims. Chloe Themistocleous, an associate at Eversheds Sutherland (International) LLP, knows from experience that unfortunately, tribunal claims are always a risk even for the best and most responsible employers. However, she advises there are some simple steps that can be taken to avoid claims being made and to minimise the risks if claims are made.

“In essence,” says Chloe, “it’s important to ensure that all employees have up to date contracts. Not only is it important to issue a contract of employment when an employee first starts work as failure to do so can result in a claim being made for compensation of two to four weeks wages, it is equally as important to check that the contracts are up to date.” Regular reviews should be undertaken to ensure the contracts the company has in place are accurate and give the protection the company needs.

Next, she says to have clear and accessible policies dealing with discipline, absence and grievances that managers must follow – “a company that fails to follow its own policy may find their defence to a claim in the tribunal fatally wounded.” She adds that it is advisable for policies not to be contractual, so that they can be changed without needing employee agreement first.

Employees, especially managers, need to be trained on recognising discrimination in the work place. This is because, as Chloe notes, damages for discrimination claims are uncapped and can be the costliest claims for employers – “it’s worth noting that discrimination claims can be made against not only the business but individual employees
as well.”

Also, Chloe advises that accurate records of all meetings and telephone calls with employees be kept. “In a large number of tribunal claims there are arguments about what was said and done and by whom. A case can be lost or won on documents and judges are swayed by documents especially if there is proof they were made at the time.”

If a claim arrives
Chloe says it is vital to act quickly on notification of a claim as employers only have 28 days to submit a response. “Missing this deadline can lead to judgment being entered against the employer automatically in favour of the claimant. Unless
there is a very good reason, it is very difficult for those judgments to be overturned.”

She adds that in many cases,the claim form will be accompanied by a list of cases management orders and a hearing date. Her advice is to diarise the key dates, as missing one could lead to the response being struck
out or the business being fined up to £1,000.

It is worthwhile considering who will attend the tribunal as a witness on behalf of the company as soon as possible. Chloe says to make sure they are free to attend the hearing and do not have any pre-booked holidays or medical appointments. It is also important to check the claim form was submitted in time – that it’s within three months from the date of dismissal or discriminatory act – taking into considering any additional time permitted due to the claimant participating in ACAS Early Conciliation. If the claim is out of time it may be possible to get the claim thrown out by the tribunal.

Lastly, Chloe says that “where consideration is being given to instructing solicitors to represent the employer in tribunal proceedings it is best to do so at the outset. Once a response is lodged it can be difficult to depart from points made.”

To conclude
It is usually a lot easier to address any issues at the time they occur rather than at a later stage. However, if in doubt, take advice at the time before committing to a course of action. Claims are expensive in both cost and management time to defend and employers need to be extra vigilant in their compliance with the law and in following any procedures should a claim be made.


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