The only way is up (baby)... it’s you vs me now!

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05
Nov

The only way is up (baby)... it’s you vs me now!

The Ministry of Justice (MoJ) recently published the Employment Tribunal statistics for April to June 2018 and the numbers demonstrate a significant shift upwards. Key statistics show:

The number of single Tribunal claims raised in the last quarter (April to June) increased by a huge 165% compared to the same quarter last year;

The number of single claims outstanding (meaning they are yet to be administered by the Tribunal Service so that the actual tribunal process can commence) increased by 130% compared to the same quarter last year;

A total of 12,400 refund payments, with a value of over £10m, were made since the tribunal fee refund scheme was introduced;

The average compensation award for unfair dismissal cases was £15,007 – the highest award was £415,227;

Disability discrimination cases had the highest average award at £30,700 – the highest award paid out was £242,130; and

The number of claimants not being legally represented also increased to 17%, from 9% compared to the same quarter last year.

As expected following the removal of tribunal fees in 2017, there has been a steady increase in the number of tribunal cases. However, the MoJ has confirmed that we are still not quite at the level of claims that were being submitted before the tribunal fees were introduced in 2013. The inference being there will be even more cases going to tribunal over the coming years.

In addition to the increased risk of litigation facing employers, the HM Courts and Tribunals Service (HMCTS) has published a report on its reform programme, which includes changes in the tribunal service. The aim is to make the service more responsive to user needs, so will also include facilities to resolve some cases online and via video links.

We have also heard that the independent legal watchdog, the Law Commission, is consulting on time limits for employees to bring tribunal claims. Currently for unfair dismissal and discrimination cases, the claimant must lodge the claim with the Tribunal within three months. In some instances, the Tribunal judge can decide to extend this timeframe, but this is certainly not the norm. Claims for redundancy pay and equal pay have a longer timeframe of six months.

The Law Commission is consulting on whether the varying time limits should be made more consistent and be set at six months for all claim types, rather than leaving it to individual judges to make this decision. The basis for this proposal is that having a consistent timeframe for all claims provides both employers and employees with clarity on when a claim has to be submitted, without any possible extensions available.

I can see business forums strongly challenging this proposal on the basis that employers will have a much longer period of uncertainty re an employee taking tribunal action against them. Coupled with the significant increase in tribunal claims we have seen, and are likely to see in the future, my advice is for all employers to consider if they have the following in place:

Contracts for all staff – any employee who is contracted to work with you for a month or more, should receive a contract within two months of starting employment with you. Failure to provide a contract means additional compensation will automatically be awarded to the employee, where s/he wins their case at Tribunal.

Documented disciplinary, grievance and health and safety policies – these are legal requirements and a Tribunal will refer back to these documents in legal proceedings.

Managers who follow documented procedures – a Tribunal will not only look for procedures to be in place, but also that managers (and employees) apply them correctly. Having procedures in place which are obviously not followed by your managers is not a good sign in Tribunal hearings!

Fair and reasonable investigations – investigations are critical in disciplinary and grievance procedures – managers need to understand where to look; who to question; and what to ask. Get the investigation stage wrong, and the whole process can unravel.

A (GDPR compliant) paper trail – having evidence that the procedures have been applied is also critical in a Tribunal – paperwork may not win your case, but it will certainly help reduce compensation pay outs if it clear, fair and available!

Expert advice – if you have access to expert guidance, this can go a long way to ensuring you are managing your staff in a fair, consistent and reasonable manner, which definitely helps in tribunal cases.

At Workplace Law, we help our clients to implement, understand and communicate their procedures to staff, and ensure managers (and employees) are trained to deliver them correctly.

We advise and guide our clients through all queries, and if a claim is lodged, we are on hand to manage the process with the business from liaising with ACAS, drafting the employer response, drafting witness statements and representing at tribunal.

If you have an issue you’d like to discuss, please contact Tar Tumber to see how Workplace Law can help you.