Unison just last month lost their third bid to have Employment Tribunal fees scrapped. As an employer, you might be breathing a sigh of relief at that news, especially with statistics showing that since fees were introduced the number of employment claims accepted at tribunal have dropped by a whopping 72%.
As we can see, fees appear to be a major factor in the decision to proceed to a tribunal. However, with Unison vowing to keep trying to scrap tribunal fees and the government currently reviewing their implementation, what can you do to avoid being taken to an employment tribunal?
Handling a grievance properly
Prior to an employee making a claim against you, it is likely that they will make a complaint. This could be formally, or informally, and can be done at any stage of employment – as one employer in Manchester discovered when a discrimination claim was brought against them, and the claimant won around £16,000 in compensation! But more on that later…
Most often it is best to try and get these things sorted out informally if possible, if nothing else to save time that could be spent on your business! However, sometimes you might find that the case is too serious to attempt this, so you will need to instigate a formal procedure.
The formal grievance procedure is split into three stages:
- The formal meeting; where you discuss the issue, when it first arose, and how the employee would like to have it resolved
- The investigation; take all the time necessary to understand how the grievance has come about — is the employee’s claim valid? (we’ll go into this in more detail later)
- Present your findings; should you find you are at fault, explain in writing how you intend to resolve the issue and, of course, include an apology if you can
After these three stages are complete, the grievance is in the employee’s hands. They are well within their rights to appeal your decision, which you should hear, however if it cannot be resolved then they will need to decide what to do next.
If they remain unhappy then they will need to notify ACAS of their intention to make a formal claim, ACAS will then contact you and the employee and attempt Early Conciliation. This is now a step required by law, to avoid the matter proceeding to a full tribunal claim if possible…
This grievance procedure is very important in ensuring that you keep disputes from devolving into tribunal claims. Therefore, it is worth including a grievance procedure in your employment policies, to help your staff understand how they should report any employment issues to you the right way, as well as how you will process their claim prior to further action. What’s more if an employee (or employer for that matter) fails to follow your internal procedures without good reason, this is likely to be frowned upon at a tribunal and could even impact any award given.
But, as we’ve mentioned, it’s not just employees that can bring a claim against you. It sounds unbelievable, but the reaction of the company involved when the candidate brought the potential discrimination against her meant they landed in very hot water.
Furthermore, ensuring you follow procedure can help you to avoid costly mistakes. Remember the second stage of the dispute procedure – the investigation? Well, as seen in the tribunal case , first impressions of an incident can be misleading.
Sarah Mbuyi won a claim of religious discrimination following her dismissal from Newpark Childcare, after she was accused of having made discriminatory comments towards a lesbian colleague. The employer had acted quickly to protect the lesbian employee and dismissed Mbuyi, however it seems they should have done more investigation into the issue.
A little more investigation by the employer could have meant they avoided this claim altogether.
So, it’s worth remembering that disputes can arise at all stages of employment, and proper process is essential – so effective management of staff as well as potential staff is vital to ensure that you don’t fall foul of employment law. This will become even more important if Unison are successful in scrapping tribunal fees.
What about Early Conciliation?
It is also worth considering though that ACAS conciliation prior to a tribunal is now compulsory too. However, the success rate of these, as reported by ACAS, might not be as high as you would hope. Only roughly a third (35%) of employers, and only 29% of employees, who participated in ACAS Early Conciliation actually reached a settlement. And with just over half (55%) of employees who didn’t reach a settlement proceeding to tribunal, this means around 1 in 3 employees that reach the conciliation stage go on to make a claim against their employer. This means that most of the people engaged in an already lengthy and time-consuming process will have had to proceed to spend yet more time, with potential added cost, on an employment dispute. And keep in mind that’s with fees in place – in fact the largest reason why employees chose not to proceed.
But remember- whilst it is compulsory to go through ACAS conciliation, neither party actually have to engage in it, and in some cases both employer and employee for whatever reason don’t even make a proper attempt to reach a settlement. However this is likely to mean that an employment tribunal is the next course of action – but when the average tribunal award cost is around £18,000, this isn’t the ideal next step.
Therefore, it’s all the more important to ensure that you manage grievances in the workplace effectively, and try to resolve them in-house before the employee can proceed with a time-consuming and potentially costly claim. Even with fees in place, there are still employees willing to take a gamble, and those willing to pay are likely to have higher value claims, so it is something all small employers should want to avoid.