On 26th July 2017 The Supreme Court unanimously ruled, in a landmark victory for employee rights, that Employment Tribunal claim fees are ‘unlawful’, ‘prevent access to justice’ for lower earning workers, and are to be scrapped with immediate effect.
The ruling is a huge legal victory for employees seeking legal justice for claims such as unfair dismissal, bullying and harassment, unlawful deduction of wages or discrimination at work. The Conservatives’ introduction of fees in 2013 of up to £1200 for workers to have their case heard in Tribunal were designed, according to opponents, to allow managers to abuse workers without the prospect of legal redress. Whatever your political stance, and with fees appearing to be a major factor in an employee’s decision to proceed to a tribunal after claims dropped by a huge 72% since their implementation, moving forwards employers will be under intense pressure to get their employee relation processes and policies right.
So what can you do to avoid being taken to an employment tribunal? My overarching piece of advice would be to handle your employee’s grievances properly.
Prior to an employee making a claim against you it is likely that they will make a complaint, either formally or informally, directly or indirectly. Embrace it. A business will spend an average of £8,500 defending themselves in court against an aggrieved employee so it is best to try and get these things sorted out at complaint stage. Some issues can be resolved informally, however for those more serious, the following formal steps should be followed:
- Hold a formal meeting with the affected employee to establish the facts and details of their issue (who, what, when, why) and how they think it could or should be resolved.
- Conduct an investigation to establish whether the employee’s claim is valid, and record any findings/evidence that support or dispute the employee’s assertions. Reach an objective conclusion based on the facts gathered.
- Present your findings; as the employer, if you identified at investigation stage that you are at fault or objectively contributed to the employee’s complaint occurring, provide a written apology and explain the steps you will be taking to resolve the matter. Whatever the end outcome, ensure that a reasonable man would agree with how you reached it and provide a written explanation accordingly to the employee.
A robust internal grievance procedure is vital in ensuring that employers keep disputes from escalating into tribunal claims and should therefore be integrated into your employment policies as best practice. It helps staff understand how they should report any employment issues and what process you will follow to investigate and resolve it.
Once a grievance procedure is concluded, the ball is in the employee’s court. They may wish to appeal your decision, which is their right, however that is unlikely to provide an alternative outcome if you carried out the stages properly and objectively.
If they remain dissatisfied then they will need to inform ACAS of their intention to make a claim to Tribunal. ACAS will then contact you and the employee to undertake Early Conciliation, which is now a legal requirement, in an attempt to resolve the matter. However, whilst it is compulsory to go through ACAS conciliation, neither party actually have to engage in it or make a proper attempt to reach a settlement.
Currently, prior to the Supreme Court’s ruling, only 19% of employees that reach the conciliation stage go on to make a claim against their employer. This ratio is predicted to hike up following the abolishment of the fees, meaning that employers will need to continue engaging in an already lengthy and time-consuming dispute process, with further incurred cost.
So considering that the average tribunal award cost is around £13,000 (MoJ 2015/16), in addition to the average £8500 costs to defend your case, can you afford not to manage your staff’s grievances in the workplace effectively?