Q. I am being taken to a tribunal by my employee, how can I best prepare for it?
A.The earlier you take advice the better, according to Martina Murphy, a barrister and also a member of the Federation for Small Businesses’ employment committee. And you don’t have to go to a lawyer to get advice. If you are a member of the Federation for Small Business (FSB) they can give you advice, likewise you can talk to someone at the Citizens Advice Bureau. The earlier you get advice the better. So, if you sense that something is brewing in your workplace, for example, if you are about to sack somebody and you are worried that they might be thinking about taking you to a tribunal, then make sure you do things properly and consult an HR advisor before you do this so that you are confident that you are operating within the law. Then, says Murphy, you give yourself the best chance of having a strong defence if you do end up at a tribunal.
Martin Brewer, partner in the employment team at law firm Mills & Reeve, says that the first step in a tribunal case will be a case management decision. This can take place over the phone or in person and those in attendance will be the tribunal judge and either the parties themselves or their representatives. This lays out the work that needs to be done in the run-up to the actual hearing itself, which includes witness statements and other documents that are relevant to the employee’s claim.
“Also, in some cases, it’s worth sitting down with the claimant and, without admitting liability, say that you are sorry they are upset,” says Brewer. The benefits of doing this is that it can help avoid aggravated damages, especially in discrimination cases, and it helps to improve the employer’s image: “You look less like an ogre if you can still sympathise with the claimant,” he says.
Q. What can I do if I don’t want to go to through the tribunal process?
A.You can try and settle the problem outside of a tribunal court, says Brewer. The Advisory, Conciliation and Arbitration Service (Acas), is a government body whose purpose is to improve industrial relations. It also provides arbitration and mediation to prevent cases from reaching the tribunal courts. It is worth consulting Acas as soon as possible so that you can reach a settlement in a timely manner.
“Even if you think that you have a strong defence, it can be cheaper for your business to reach a settlement rather than go all the way to a tribunal hearing,” says Brewer.
The FSB is currently lobbying the government for more access to mediation for small businesses to avoid cases going to a tribunal hearing unnecessarily.
Q. Can I recoup my costs if I win at the tribunal hearing?
A.It can be very difficult to recoup costs even if you win regardless of whether you are an employer or the claimant, says Brewer, a partner in the employment team at law firm Mills & Reeve. This can be frustrating since tribunals can be very costly, both in lawyers’ fees, your time and your resources. Due to this it is always good to have strong management processes in place from the first day that your business starts operating, says Brewer. This can help you avoid situations where you might face a tribunal. Sometimes prevention is better than cure.