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Avoiding Employment Tribunals
They are among the worst fears of any employer, so whenever possible, employers should look to avoid having to attend a hearing.
Of course, there is no guarantee that a rogue employee won’t file a complaint, regardless of how groundless this may be, but even these can be dealt with quite easily, saving the employer stress or worry of having to attend a hearing.
The first stage a claimant has to go through is ACAS Early Conciliation. As the respondent, you may not be contacted at this stage, but you typically will be, and it’s an early opportunity to stop a claim in its tracks – claimants can be persuaded that an unnecessary, but cheap, settlement may be the best option for them, and may of course be for the employer too.
If you’re at this stage, contact us now and avoid the cost & difficulty of replying to an actual claim: it’s easier to negotiate in this month that ACAS have to conciliate the case than it is when you have the options of settling or completing a response to the tribunal claim (an ET3), so dealing with this now will save you money – in the unlikely event the case can’t be settled with our negotiation, any fees paid in conciliation will be set against the cost of defending the claim.
If a claim is already in progress, negotiation on a settlement is common & expected. To keep this information private, all correspondence intended to assist in seeking a settlement should be marked ‘Without Prejudice’ or ‘Without Prejudice Save as to Costs’. Correspondence marked in this way is treated as strictly between the parties, and is not normally presentable in court or at a tribunal; the exception is the ‘Save as to Costs’ correspondence, when the correspondence can be put before a costs hearing to demonstrate the efforts & willingness of a party in trying to avoid a hearing.
Where a case is in progress – an ET1 has been filed & accepted by the Tribunals Service – settlements can go through ACAS, to ensure they are legally binding. These settlements are entered onto a COT3 form, and bring the tribunal claim to an agreed end. Agreements can be reached directly between the parties, and ACAS contacted to facilitate the COT3, or the parties can simply make the arrangements between themselves – an option that should be considered if an agreement is reached at the last moment.
Good management procedures should help employers to avoid anything but the most frivolous employment tribunal claims, but even this isn’t always sufficient. If a claim has even some merit, it may be necessary to go to a full hearing, simply so the evidence can be heard & a judgement made. The alternative is for the employer to explore a settlement. While the employer may be loath to settle if they don’t accept the merits of a case, given that less than 1% of cases disposed of by the Tribunals Service attract a costs award, it may still be financially beneficial to settle rather than risk the legal costs in defending a claim.
Whether your business needs to settle a claim, or you want to get some assistance in getting your policies & procedures reviewed & tidied, contact the Employment Law Clinic now for prompt & financially competitive service.