On 26 July 2017, the Supreme Court concluded that the Employment Tribunal fee regime, first introduced in 2013, prevented access to justice for all and was therefore unlawful. The regime charged fees of up to £1,200 to lodge and hear a claim. It remained controversial throughout its time and was said to have led to a 70% reduction in claims.
Since the end of July and the removal of fees, the Tribunal Service has seen a significant jump in its case load. Some employers, who may not have encountered a Tribunal claim for months or even years, are already reporting an increasing number of claims.
Given that the fee regime was in place for four years, many HR professionals may be out of practice in how best to manage a Tribunal claim. Indeed, junior members of the team may not have been faced with one before.
How, then, should you respond if a claim arrives on your desk? Some top tips on how to handle a claim if one arrives on your desk:
- The role of Acas: it is important to engage with Acas who can, especially if the employee does not have legal representation, be helpful in trying to resolve a future claim. Since 6 April 2014, a prospective claimant must contact Acas to start a mandatory one month conciliation period before he or she files a tribunal claim. Early conciliation has been shown to lead to a reduction in claims progressing through to Tribunal. Use of the early conciliation period also “stops the clock” on the usual 3 month deadline to lodge a claim from the dismissal or subject of the complaint. Depending on when Acas are contacted, the deadline can be extended by a further month.
- Subject Access Requests: in addition to the increase in Tribunal cases, employees are making increased use of subject access requests as a tool to force employers to make early disclosure. At the moment, you have 40 days to respond to a request and can ask employees to pay a fee of £10 towards your costs (although when the General Data Protection Regulation comes into force in May next year, the time period for response will reduce to only one month, and the information must be provided free of charge). Within those deadlines, consider tactically whether there is a best time to respond: for example, by waiting until after an appeal process has concluded.
- Manage your post: Tribunal deadlines are hard and fast, and will come by post. Receiving contact from Acas is a good indicator that you should look out for a claim. If you do not lodge a defence within the deadline stated in the correspondence you receive it is very unlikely that a Tribunal will accept it. In this case, an employee can obtain a judgment in default and such judgements are hard to challenge. It is important that post is opened quickly to maximise the time you have to prepare your defence and make sure that the right team members are brought into the loop.
- Use your calendar: when you receive a claim form you may also, particularly with simpler claims, receive case management orders from the Tribunal, which lead you right up to the date of the hearing. Making an early note of the deadlines which you will need to comply with is critical - the Tribunal is likely to be less tolerant of an employer’s late compliance with an order.
- Retain evidence: not keeping relevant documentary evidence can make it harder for you to defend a case. Where documents are created, for example, during a disciplinary process, ensure that you retain these. Do you need to make notes of calls you have? Have you kept an email you sent?
- … but beware of disclosure: it is important that those involved with a case take care not to create documents which could adversely affect your defence, such as a flippant comment about someone sent by email. Any such documentation will be disclosable and can undermine an otherwise strong position. The disclosure obligation is broad and can require extensive searching for relevant documentation.
- A smoking gun?: what should you do if you uncover a damaging email whilst undertaking your disclosure exercise? It is important that staff understand they cannot dispose of or disregard evidence. There is an ongoing duty to preserve and disclose evidence connected to a case. We recommend you take advice if you do uncover such correspondence to consider how to address this in the litigation process.
- Consider your strategy: the introduction of the online Tribunal database in early 2017 means that future claimants and the press have access to previous claims. They can, for example, establish whether your business has faced similar claims before, and the outcome of those cases. Whilst Tribunal judgements are not binding, access to data may increase the likelihood of new claims being lodged or make settlement more difficult to achieve. Being consistent with your approach to claims you plan to defend, as well as any settlement packages you wish to offer, is important.
- … and your brand: managing cases and whether to defend or settle them can impact on your brand. On one hand, how will you deal with a high profile discrimination case? Can your manager handle a case which raises questions about their personality? On the other hand, if your strategy is simply to settle all claims for economic reasons, regardless of merit, could this make you a target to receive more claims from employees in the future? Defending some claims remains important, particularly if they concern your ethics and values. It is important in such cases to request early support from your PR and communications teams to handle any negative fallout from a case.
- Prepare for the hearing: consider early on who your witnesses will be. Who do you need to present your case? Do they have experience of appearing at a Tribunal? Cross examination can be unpleasant. Judges are often very active when deciding a case and may interject and ask witnesses questions. You may wish to consider what resources and support you can make available to help them prepare.