Being slapped with an ET1 claim is every employer’s worst nightmare, so how can bosses stop disputes escalating and what should they do if a case does reach the court? Annie Hayes reports.

Avoiding a tribunal – the fundamentals

Nicola Pickering, an associate in the employment team at Norton Rose LLP, says the first step is to have a well-drafted disciplinary and grievance policy in place, accompanied by a staff handbook. Having written policies are of little use, however, if they’re not applied consistently and, most importantly, accurately in all cases.

“To ensure that this occurs, HR should invest in thorough and regular employment law training for all managers. Responding to grievances raised with a prompt and thorough investigation is also critical in avoiding an escalation of disputes,” says Pickering.

Of course, it’s often management that are in the hot spot when it comes to triggering a situation that escalates to tribunal, and Leon Deakin, solicitor at Thomas Eggar LLP, says that it is crucial that all employees, especially those in management positions, are aware of and trained in the aspects of employment law which are relevant to their role and those they supervise.

In addition to this, Deakin believes that fostering an environment where individuals are not scared to address issues and, if necessary, ask for help is important. It’s a key way of ensuring that every attempt is made to settle any matter internally.

Grievance and disciplinary procedures: The building blocks

Going back to the basics and ensuring that all policies are legally compliant is the first step, according to Deakin. Downloadable statutory discipline and grievance procedures are available from the Department for Business, Enterprise and Regulatory Reform website. Pickering notes that employers should be aware that there is a proposed revocation of these statutory procedures.

Both Pickering and Deakin say that it is vital that policies are made available to all from the outset. Deakin adds: “This can be done by issuing employees with copies and also making copies readily available such as on notice boards or intranet systems.

“When the procedures are invoked, an employer should make its best attempt to adopt a uniform approach to entrench the procedures. As part of this an employer should also ensure its does not bury its head in the sand and fail to address issues when they initially arise, as delay or failure to deal will often return to haunt you.”

Sadly, despite best efforts, disputes do escalate so is it best to settle before matters reach the court?

Settling out of court

Given the economic downturn, Pickering says that she is increasingly witnessing employers taking their chances at a tribunal rather than make a substantial settlement payment. Yet this comes with a risk factor and bosses must weigh up the fallout costs if the decision goes the other way, especially taking into account that the amount of potential compensation which the employer could be ordered to pay may be uncapped.

Yet Deakin still believes that settling is a good option: “The associated risks are less as there is generally never any certainty with the tribunal claim as so much turns on what happens on the day.”

Another issue is the damage that a tribunal case can do to company reputation: “In addition, as most settlements are without admission of liability and subject to confidentiality clauses it may preserve reputation entirely,” remarks Deakin. “However, employers should be aware that early settlement may send out a message that they are an easy touch which could encourage future claims. Finally, there are employers who will want to fight on principle.” And for those that do decide to take it all the way, what should they do to prepare for court?

Preparing for battle: The dos and don’ts

Pickering advises employers to decide as early as possible whether external advisors should be appointed to assist with the claim. If this is the case, she says, one person should be nominated as the lawyer’s main point of contact. Business Link also advises finding out whether the business qualifies for help in preparing the case via the Community Legal Advice website.

“Secondly, be ultra cautious about creating or forwarding documents or emails concerning the claim,” continues Pickering. “This information may not be privileged or protected by the ‘without prejudice’ exception (i.e. the rule that only genuine attempts to settle a dispute are exempt from the disclosure requirements which normally apply). Not only could the employer be asked to disclose such information as part of the tribunal proceedings, but employees could obtain a copy of it by making a subject access request under the Data Protection Act 1998.

“Thirdly, beware of losing legal advice or litigation privilege protection which may attach to lawyers’ advice or documents produced in connection with legal proceedings, by circulating such documents or information internally. Fourthly, meet with all the managers who were involved in the dispute in order to obtain a clear understanding of what has occurred, and to obtain witness statements if necessary.”

Finally, says Pickering, ensure as far as possible that diaries are arranged so as to allow for the considerable amount of management time needed in dealing with the claim.

Deakin says that preparing witnesses is also necessary: “Those appearing as witnesses should be fully supported as it can be a very stressful role, and something like arranging a trip to the nearest tribunal to watch a hearing is often helpful to try and de-mystify the process.”

Guidance on what happens at a tribunal can also be found at the employment tribunals website.

Preparing for the hearing outcome is also important. If an employer loses an unfair dismissal case, the tribunal may order one or more of the following: re-instatement, re-engagement or financial outcome (by far the most common outcome).

Tribunals will only order re-instatement or re-engagement if they believe it can actually work. Challenging a tribunal judgment is also possible, but appeals will only be heard on a point of law or if the judgement based on the evidence presented was one that no reasonable tribunal would have reached.

Preventing disputes escalating is clearly key and understanding and communicating to all employees how claims can be prevented is an essential part of that. The Acas Code of Practice on Disciplinary and Grievance Procedures is a central source of information on best practice and is due to take on an increased importance once the statutory dismissal and disciplinary procedures are revoked and, with thousands of pounds at stake investing in getting policies and communication in place, is surely worth the devotion.