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.


 

Related Articles

  • Part ONE: Employers in the firing line  

    Before July 2013 individuals were free to bring Employment Tribunal claims. However, in July 2013 the government introduced Employment Tribunal fees for anyone wanting to make a claim or appeal a judgment.

    The fee to lodge a claim was £160 or £250 (dependent upon the nature of the claim) and the fee to pursue the matter to a final hearing was a further £230 or £950 (again dependent upon the nature of the claim). If employees won their claim, the tribunal judge could order the employer to pay any fees incurred.

    According to Chloe Themistocleous, an associate at Eversheds Sutherland (International) LLP, after the introduction of tribunal fees the number of claims being brought fell by 80%, but the ratio of claims being successful did not change and so the introduction of fees did little to deter spurious claims. “Clearly,” says Chloe, “some individuals were deterred from making claims due to the cost. Whilst a remission system was in place to help the poorest people, by reducing or waiving the fees, those who missed out on a remission had no choice but to pay the fees or not make a claim; many simply did not want to take the risk.”

    Supreme Court decision
    It appears that while claim numbers were dropping, unrest in trade unions was growing and so Unison decided to challenge the government’s implementation of the fee regime, claiming not only that it was unlawful but that it indirectly discriminated against women.

    Chloe says this was not by any means an easy task as both the High Court and Court of Appeal rejected the claim. “However, at the end of July 2017, the Supreme Court quashed the tribunal fee regime giving judgment that it was both unlawful and indirectly discriminatory.” Effectively the Supreme Court decided that the government acted outside its powers when it introduced fees at current levels, because the fees effectively prevent access to justice.

    What does this mean?
    The ruling means a number of things. Chloe explains: “As a result of the judgment no further fees can be charged by the Employment Tribunal until a replacement scheme is introduced.” This means new claims can now be brought for free again and no hearing fees will be charged claims already lodged.

    She adds that as for those who have already paid tribunal fees, the Ministry of Justice has undertaken to reimburse fees already paid.

    Of course, without the deterrent effect of fees, employers now face an increased risk of employment-related claims from current and former staff. Worryingly, Chloe says it is also possible that some individuals might now try to claim they should be permitted to bring out-of-time claims in respect of past alleged breaches of their rights, “arguing that the now found to be high and unlawful
    fees prevented them from bringing a claim.”

    When a replacement system will be debated and passed by parliament is unknown - it could be months or even longer. The Supreme Court ruling gives parliament a lot of ‘food for thought’, but so far, it is unclear
    what shape a replacement scheme would take.

    As Chloe sees it, while there is a window of opportunity to submit a claim without paying a fee, it is likely that employees will take it. “Claim numbers are expected to rise, but whether they will rise to the levels they were at prior to the introduction of tribunal fees is unknown. If they do, it is unlikely that the current tribunal system, with a reduced number of hearing centres, judges and clerks, could cope.”

    With time, if a new fees regime is introduced and once the media attention has died down, the number of claims will level, but, in the meantime, employers must watch and wait.



     

  • Part two: Powering down 

    With rising energy bills comes the need to invest time in seeking out the best deal. While finding a new energy provider isn’t a money-making exercise, it is something that will lower costs. It is something that can be done alone, but sometimes two heads are better than one.

    This is because unlike the domestic market, the business energy supply works in a way that makes a quick online comparison not so simple. While the domestic market is largely based on location, Chris Caffery, an advisor at Utility Options Ltd, an independent energy consultancy, says the commercial market uses a number of elements that determine the tariff cost: “There is a varied mix of wholesale rates, transportation costs, government taxes and levies and, of course, profit for the suppliers. Generators still rely heavily on coal, oil and gas, so actual or anticipated costs of these fuels can create large differences in retail prices.”

    Go compare?
    Going online to make a comparison isn’t easy. There are a great many more online comparison websites for domestic energy than there are for commercial suppliers. “One of the main reasons for this,” says Chris, “is that domestic tariffs set by suppliers have a longer ‘shelf life’ usually due to a slightly higher margin placed on domestic for this very reason.”

    Other factors are considered such as credit rating (because firms are effectively borrowing from the supplier), and the length of contract (a deal may be poorer at first but over time this improves as market prices rise). Using a broker or consultant doesn’t always guarantee price transparency though; it’s not easy to compare the price that’s being offered unless there’s a change in broker, particularly if the negotiations are happening a day or two before renewal. The advice? Don’t leave negotiations until just before the renewal is due as it doesn’t give an opportunity to shop around.

    As to what could be saved, Chris offers two examples: “We’ve been helping a large motor vehicle repair specialist in Kent that employs 25 staff. Last year alone we saved 21% for that customer which equated to around £2,800 in monetary terms.”

    The second example involves another Kentish firm, a medium sized garage in Ashford. “We consistently save them around 11% over and above their supplier’s renewal prices. This saving works out at around £600 per annum.”

    Chris says that using a consultant isn’t just about the rates that are negotiated. It’s about saving time and not to having to deal with suppliers – “sometimes the extra added services can far outweigh the visual savings on the utility bills.”

    Clearly, there are a number of lessons that can be drawn. Plan well in advance for benchmarking and renewing (switching) contracts. The energy companies would much prefer customers on standard tariffs, but with some planning and effort, decent savings can be made.

    Getting redress
    In the majority of instances the energy supply relationship works out well, but where there’s a suspicion of unfair treatment, and the relationship breaks down, there is a natural inclination ask about rights of redress.

    There are two avenues of complaint open to firms who think they have been unfairly treated. All suppliers have an in-house complaints process. But having exhausted that route, the next step is to try the Energy Ombudsman to have a complaint taken further. The ombudsman can only help microbusinesses (defined as having an annual consumption of electricity of not more than 100,000 kWh, or gas consumption of not more than 293,000 kWh; or fewer than 10 employees (or their full-time equivalent), and an annual turnover or annual balance sheet total not exceeding €2 million. Ofgem doesn’t get involved with individual complaints but it does have plenty of information on its website that may prove useful.

    It is worth noting that help with seeking redress is a service that most consultants and brokers provide to customers. They take up queries with suppliers and use their contacts and knowledge to obtain a swift solution.

  • Would you like to diagnose more vehicles first time? 

    As we reach March, 2019 is well and truly underway. In fact by the time you read this one third of the year will have whizzed by never to be seen again. Now, I’m not one for New Year’s Resolutions (they’re so last year), but I am the type of chap that likes constant progress when it comes to developing a technician’s career.
        
    There’s so much to be said for small steps taken everyday that on first look appear don’t appear to make a difference, but when gazed back upon over a 12 month period have a staggering affect on your capability to diagnose a vehicle first time, in a timely manner.

    Pitter-patter of tiny feet
    Small steps are all well and good but where do you start? After all, you don’t know what you don’t know, and you’d like to start your journey to diagnostic success off on the right foot. In this instance I’d start with the end in mind and reverse engineer the outcome you desire. It’s a logical process that works, and can be replicated time and time again in your diagnostic routine.
        
    Your ‘end in mind’ in this instance is a vehicle where the fault no longer exists, that won’t appear back across the threshold of your workshop anytime soon. But how do you guarantee that?

    One test to rule them all
    I love nothing more than when the delegates working through our training programs have a technical epiphany. This happens at many points on their path of learning, but none more than with bypass testing.
        
    Bypass testing is step nine in Johnny’s diagnostic circle of love (our 15 step routine), and often the key element in the first time fix. The good news for you is that it doesn’t require mythical creatures to forge their magical powers into an object that only one technician can possess. It’s something that every tech can learn, and become a diagnostic wizard.

    What is bypass testing?
    Quite simply it’s fixing the vehicle before you fix the vehicle. Let me explain.
        
    Wouldn’t it be great if you suspected that a Mass Air Flow sensor was at fault and you could prove that you were right before you fitted a new part, or spoke to the owner of the vehicle. If you could do that then the positive effect it would have on you and the business you work for would blow you away.
        
    Picture this: Your customer has reported that the vehicle is low on power. You’ve diligently questioned them, experienced the problem with them on a road test, and the bought the vehicle into the workshop.
        
    You’ve pulled codes and found none present, followed by taking a look through serial data to hunt for diagnostic clues. It doesn’t take you long to identify that the MAF sensor frequency looks a little low at 1.5 Khz and your fuel trim data is incorrect and making a positive corrections. You’ve seen a bunch of these before and know that 1.85 Khz is a suitable value for this vehicle.
        
    You’re keen to prove that the serial data is leading you in the right direction so confirm the sensor output with your oscilloscope. The oscilloscope frequency mirrors that of the serial tool and your starting to get that warm fuzzy feeling that an you’re onto something.

    Steady the buffs
    You’ve been close to success before though, only to be thwarted in the final moments so you’re keen not to be caught out twice. You know that documenting the reasons that the MAF output could be incorrect is the way to go, and duly make a list of tests required to confirm your theories.

  • And the worst MOT tester in the UK is… YOU 

    To save money and raise efficiency, the DVSA has turned to automation. They no longer need an army of Vehicle Examiners wandering from MOT bay to MOT bay. Instead they are collecting data all the time.
        
    Let’s say I am the boss and my business is low on revenue. I beat up the manager and he in turn influences the tester to fail everything coming through the door. The customer is now stuck with no MOT and I have some simple high yield repairs.
        
    Here’s where it gets interesting. The DVSA computer is monitoring individual tester behaviour and looking at averages. The pattern is really easy for a computer at the DVSA to see because it’s just not possible that lots of cars fail on the same items every day.  The DVSA’s fix is to target garages where data shows they are hunting for work and send in a VE to crosscheck. He needs only to wait nearby until our tester issues his favourite fails and then arrive to retest the car.
        
    We all, as testers, now have access to our TQI. Lots of testers that I speak to have the sentiment that this data is all rubbish but, here is the rub. The DVSA have a team of very capable data processors looking at this data and writing algorithms that alert them to trends that need investigation.

    Take my example of one of my longest-serving testers and allow the DVSA computer to tell me every car that he has tested in the last two weeks of November for the last seven years and add in that we only want to know about cars tested after 4:30pm. We find only one car; a Y reg (2001) BMW 320i convertible, always tested after 5pm with a longest test time of thirty-two minutes and shortest of twenty-seven. Guess what, it’s my guy’s brother-in-law’s car!
        
    For me the horror is that the car has never failed an MOT. It’s also never been in the workshop for any repairs. It looks absolutely dogged out and is on around 180,000 miles. Worst still my guy has never once even advised anything on this car. The VE would assume  Barry’s guy is prepared to let things slide at the end of the day, so maybe he plans to visit me after 5pm on a Thursday.

    Conflicting vehicle locations
    This is a fun story from a close and trusted friend. My guy is at a DVSA IVA check and overhears a conversation by a couple of Vehicle Examiners. It goes like this; VE no.1 is suspicious of an MOT bay offering fraudulent MOT tests. He parks down the road from an MOT bay in Kent and checks which vehicle is logged on and being tested. He takes the registration number of the vehicle in question and calls the DVLA, identifies himself and asks if the vehicle has been seen on the DVLA camera system anywhere in the last half hour. The car was last seen on the M25 twelve minutes ago near Watford in Hertfordshire over 70 miles away.
      
    So, our VE is in Kent and the car is in Hertfordshire. If this works today in a manual sense how long will it be before computers can do this to every single test? Talk about an easy way to stop fraudulent MOTs, just using computers that the government already own.



  • Autoinform Live heads to Ireland  

    This year, for the first time ever, Autoinform Live will be taking place in Ireland. Held at the J&S Training Centre in Co. Cork, 27-28 April 2019, the event will replicate the same format implemented at the Wolverhampton and Edinburgh shows, dividing the timetable into three modules which provide a mix of practical and theoretical sessions to suit all skill levels.

Most read content


Search

Sign Up

For the latest news and updates from Aftermarket Magazine.


Poll

Where should the next Automechanika show be held?



Facebook


©DFA Media 1999-2019