Employment Tribunals represent a significant issue for employers, they drain resources, damage reputations, and if claims are successful can be costly. While you may not be able to prevent all claims, you can minimise your risk of claims arising and maximise your chance of successfully defending yourself in a Tribunal by ensuring compliance with relevant employment law and following best practice. That being said, the number of Employment Tribunals and successful claims is increasing rapidly.
The number of Employment Tribunals in England and Wales has increased by an average of 15% over the last 5 years, effectively doubling the number of cases
This is largely attributable to changes in UK legislation such as the introduction of the Equalities Act (2010) and the heightened profile and decreased tolerance of inequality. Great strides have been made to increase workplace equality and this is reflected in the increase in tribunal claims where some organisations have not adapted fast enough.
The success rate of complainants has also changed over the last 5 years having decreased substantially for Unfair Dismissal and Redundancy cases. It is worth noting that 2 out of every 5 claims relating to Whistleblowing is successful and that the awards for whistleblowing cases are uncapped.
Given the current economic turbulence caused by the COVID-19 pandemic the level of redundancies is increasing. This is likely to be mirrored by a surge in redundancy related Employment Tribunal cases. The financial crisis in 2008/09 resulted in a record number of Employment Tribunal cases in 2009/10 as employers were operating in difficult conditions and force to make difficult decisions quickly.
Judge Barry Clarke, President of the Employment Tribunals for England and Wales, said in June of this year that he expects a 'big increase' in Employment Tribunal claims when the furlough scheme ends. A arecent study carried out by ACAS found that 37% of employers plan to make redundancies in the near future, with Chief Executive Susan Clews commenting"Businesses are facing extremely difficult circumstances due to the coronavirus crisis and our poll reveals that many are considering redundancies.”
Fees for submitting Employment Tribunal Complaints were ruled unconstitutional by the Supreme Court in 2017. While the number of cases was already growing at this point, this is undoubtedly a factor in the continued growth. Since this time, employers have seen a resurgence of low value claims, which can be disproportionately costly to defend.
In addition, the government has recently passed a number of reforms to Employment Tribunal legislation intended to allow the system to function under COVID-19 related restrictions.
One such change will allow multiple claimants to use the same ET1 form if their claims give rise to common or related issues of fact or law, or it is reasonable for them to do so. This may well give rise to more groups of people, particularly relating to redundancies, filing the same complaint and being able to pool resources to increase their likelihood of success.
Particularly relating to whistleblowers, organisations still all too often shoot the messenger. The All Party Parliamentary Group (APPG) on Whistleblowing found in a recent survey that organisations retaliated against the whistleblower in 77.8% of cases. The right for whistleblowers not to suffer detriment is prohibited by the Public Interest Disclosure Act (1998) and is explicit grounds for a worker to present a complaint to an employment tribunal.
The APPG on whistleblowing has also found chronic under representation of whistleblowers at Tribunal with ~50% representing themselves with organisations almost always making use of specialist council.
Legislation relating to whistleblowing is changing on a global basis. In recent history we have seen the introduction of Sarbanes Oxley (SOX) in the US, SAPIN ii in France, amendment to the Whistleblowers Protection Act in Japan (2004),the EU Whistleblowing Directive and potential replacement of the Public Interest Disclosure Act (1998) in the UK. This raft of legislative changes all have one thing in common – enhanced whistleblower protections, both legally and financially. This will increase individuals willingness and ability to take complaints to tribunal in future.
What can organisations do?
There are two key ways to minimise the risk of your organisation facing, and potentially losing, an employment tribunal;
Policies and Processes
Ensure that your employment Policies and Processes are in place and;
Reflect current legislative requirements.
Cover the majority of potential circumstances.
Sensible, logical and proportionate.
Are clearly documented and freely available.
Implemented, followed and audited.
Reviewed on an appropriate timeframe.
Policies and processes are excellent tools to ensure that expectations are clearly communicated and managed respectively. It is far harder for someone to claim that they were unaware of the rules or the consequences if these are clearly laid out. This applies equally to managers with reference to their application of the rules.
Treat People Fairly
Resist the temptation to use disciplinary proceedings to solve tangential problems.
Do not ignore mitigating circumstances - For example if someone’s absence record is poor and they claim that they are being bullied do not assume that this is an excuse, but investigate appropriately to determine a complete picture of events.
Do not enter into disciplinary proceedings with an outcome in mind. If, for example, you find a worker difficult resist the temptation to put them through disciplinary proceedings for minor offences.
Whether in-house or 3rd party, independent expert help is vitally important to ensuring that Policies and Processes are in good shape and people are treated fairly.
Employment Tribunals are at best an expensive distraction and at worst risk significant damage to reputation, morale, performance and culture. It is not possible to eliminate the risk of employment tribunal complaints, however the risk of complaints being made and upheld can be greatly reduced with a strong governance framework and appropriate resourcing.
Employment Tribunals are on the rise and show no signs of slowing down, it is worth investing the time, energy and resources to set your organisation up to reduce your risk and improve the culture, performance and confidence of the organisation.
Simon Rowse is an Executive Director of Safecall, helping organisations discover and resolve workforce misconduct through the provision of Whistleblowing services including independent reporting, investigation and training services.
Laura Farnsworth is Head of Rockhopper, an employment law service from the UK’s leading employment practice Lewis Silkin, providing low cost, fixed fee defence of Employment Tribunal litigation for employers.
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