Updated: 18 hours ago
The fear of Employment Tribunal (‘ET’) claims is always at the back of every employer’s mind. Although it’s impossible to mitigate the risk of ET claims totally, there are some practical steps that all employers can take to reduce this risk - and to protect themselves if they do find themselves in an Employment Tribunal.
With Employment Tribunals comes stress, expense, business disruption, and uncertainty.
If you follow these 5 steps, they will help you to mitigate the risk of being taken to an Employment Tribunal, and (if you are) will help you to defend a claim successfully.
"I do not like war. It is costly and the outcome is uncertain" – Queen Elizabeth I
1. The Contract of Employment
A thoroughly well-drafted Contract of Employment is central to any employment relationship, as this sets out the legal obligations and rights of the parties (the employer and the employee). When written to a high standard, this document removes any uncertainty or ambiguity in the relationship and instead creates certainty. It expressly covers the key areas of the employment relationship that often give rise to disputes, such as working hours, salary, holiday entitlement, or sick pay).
Whilst it might be tempting to grab a generic Contract of Employment from the internet and use that, this should be avoided. Contract terms should be carefully considered to ensure they fit the business and the role and duties of each employee.
Once signed, remember that a Contract of Employment is legally binding on the parties - so it’s really important to get this right the first time. If you do find yourself in an Employment Tribunal, this is a key document any Tribunal will refer to in the event of a claim. Make sure your Contract of Employment covers all bases as it will help to protect you.
It’s best practice to review and update your Contracts of Employment - particularly if an employee’s role changes, or in response to changes to employment law. A tribunal will look take note of an employer that is demonstrating best practices - and is complying with changes to employment law. If your Contract of Employment is well-drafted and presented, it will create an impression of a professional, compliant, and reasonable employer (as opposed to the opposite).
2. Workplace Policies & Procedures
Sitting alongside a well-drafted Contract of Employment should be a complete set of Workplace Policies and Procedures. These should clearly describe and cover the further aspects of the employment relationship not contained in the Contract of Employment (such as your Disciplinary Policy or Sickness Policy, for example).
These details are often contained in a non-contractual Employee Handbook or are set out in standalone policy documents. Don’t be fooled into thinking that because these are not contained in the Contract of Employment that they are any less important - they are. A good set of Workplace Policies articulate more details of the standards you expect from employees and sets out the framework for all key aspects of the employment relationship.
A well-written set of Workplace Policies and Procedures can be very helpful when defending an ET claim - if (as an employer) you can demonstrate that you have followed them. Through your policies and procedures, you can help an ET to understand what standards you expect from your employees, how departures from the required standards are monitored, and how non-compliance is dealt with.
A tribunal will look positively on an employer with a well-written (legally compliant) set of Workplace Policies and Procedures, with evidence-based systems in place to monitor and report employee compliance to them.
Remember to review your Workplace Policies and Procedures regularly to make sure they are effective and comply with any changes to employment law.
3. Actively manage the employment relationship
When a potential problem with an employee arises, or when there are signs of an employment dispute brewing, you need to get on the front foot (quickly). It’s important to proactively manage these situations and, as a good and reasonable employer, to act quickly in accordance with the relevant policy.
Although acting quickly is important, remember that acting with fairness, consistency, transparency, and openness, are all key hallmarks of a ‘fair and reasonable’ employer that an Employment Tribunal will look for.
Kicking an employment issue into the long grass, or downplaying its seriousness, almost never helps to improve or resolve it - on the contrary, the issue usually festers and becomes something bigger. Therefore, don’t be complacent - ever.
When a problem arises, approach discussions with employees in a proactive and consistent way. Remember not to pre-judge issues or jump to conclusions without gathering all the reasonably available information and evidence surrounding a matter. Demonstrating this can often help to defuse employment disputes before they reach an ET, and most certainly will help to protect you in the event of a claim.
4. Get expert help
Not all companies have the luxury of an in-house HR department to support the navigation and successful management of HR and employee issues.
Business owners and managers are often left with the unenviable task of taking care of the day-to-day running of the business and wearing the ‘HR hat’, without having the training, knowledge, or expertise to navigate the challenges and pitfalls of employment law.
When faced with an employee issue (or potential employment dispute), getting expert help the from outset is advisable - and before any key decisions are made.
Remember, an Employment Tribunal will often look just as much at the processes and procedures an employer has followed, as the outcomes that have been reached.
Get expert help (early on) to make sure you get these things right!
5. Document everything
Even by doing all the right things, in the right ways, and at the right times, the risk of receiving an employment claim and a matter proceeding to an Employment Tribunal can never be completely mitigated.
Should you find yourself in an employment dispute (and should a claim be made against you in the ET), having ‘evidence’ of the actions you took and the reasons for the decisions you made will be critical when defending a claim.
Whether it seems likely or not, it’s worth approaching every employment dispute (no matter how minor) with the mindset that it might end up in an Employment Tribunal - and therefore evidence should be collected and records kept from the outset.
‘Evidence’ is anything relevant to the matter which illuminates it. Evidence should include a complete paper trail of the matter, including:
Records of the key events leading to the dispute and its cause;
What actions you’ve taken during the dispute and the reasons for them;
Records of any formal communication you’ve received from the employee;
Records of any formal communication you’ve sent to the employee (including any full and final responses);
Records of any informal emails you’ve exchanged;
Notes of any conversations or minutes of meetings you’ve had with the employee (ideally bearing the employee’s signature and date, confirming that the notes are an accurate and true record of what was discussed)
In short, every step along the way should be documented. This not only ensures that there are no gaps in the history and handling of the employment dispute but also provides a complete record of events - which will help you to successfully defend an Employment Tribunal claim.
Keeping this level of documented evidence (whilst it may be time-consuming) is well worth it. Should you be faced with a claim, it will enable you to mount a much more robust and rigorous defence - and in doing so will deter any claim, or will help you to settle a claim on more favorable commercial terms, if the employee can see you have the evidence to successfully rebut and resist their claim.
Do you need some expert help with an employee issue that could result in an Employment Tribunal claim? Book a free initial consultation with us today.