Minimising the risk of, and optimizing your defence to, Employment Tribunal Claims
Tribunal Statistics for Northern Ireland show the number of Tribunal claims registered in the 2017/18 year was 8,275. This represents a sharp increase of 211% from the 3,921 cases registered in the 2016/17 year and is a 271% increase on the 3,051 cases registered in the 2015/16 year, which is nearer to the numbers of claims expected in any year. Therefore, it is more probable that your Organisation could receive a Tribunal Claim. The greatest percentage of Tribunal claims relates to non-discrimination claims. These claims include unfair dismissal, unlawful deductions from wages, holiday pay claims etc. The main forms of discrimination complaints are on grounds of disability, sex and race.
So how can you help your Organisation minimise the risk of claims and also give itself the best chance to successfully defending them? There are five key areas for you to consider that will greatly assist doing so. These areas are:
- Witness Evidence.
- Legal Support.
- Alternative Resolution
On receipt of the claim, you will probably be looking historically at what communication has taken place and what documentation exists. If you want to minimize the risk of claims these are the main areas to focus on which will in turn assist your defence of it. In Areas 3-5 I have provided guidance to help you successfully defend the claim after its receipt.
Embedding a culture of good communication and being transparent in decision-making are vital to minimizing the risk of claims. On a workplace level, good communication means:
- Communicating company wide, the rules & standards of behaviour expected in the workplace.
- Ensuring all employees are aware of Company’s policies/procedures particularly managers who have responsibility for ensuring that the standards are upheld and to correctly follow the processes.
- Ensuring managers communicate early with employees any dissatisfaction, explaining the reason and documenting key points.
- Informing employees of the consequences of breaching rules and policies.
- Encouraging employees to speak out about concerns and ascertain if they can be resolved.
On an individual level, managers play a fundamental role in embedding a culture of good communication and their actions often win or lose the legal case. Training Managers on the content of the Company’s policies and equipping them on how to follow the Company’s processes fairly and in a non-discriminatory manner is key. This includes training and communicating to them the standards expected, how to conduct reasonable investigations, the importance of following internal processes (for example performance management, grievances and disciplinary processes) and good record keeping. Managers can also benefit from soft skills training on how to handle difficult conversations. Managers should be trained and know the importance of dealing with issues promptly and being transparent in their decision making that is providing employees with facts to support their opinion/position. Good managers will also remind employees of the process/policies that apply, inform them of any outcomes with the reason/s for any decisions and, if applicable, consequences of further breaches.
Generally, documents will contain the evidence of what has been communicated. Documents include: written documents, tapes, computer records, emails, databases, audio communications, text messages, instant messages, posts on social media etc. Organisations must remember that all relevant documents are discoverable, whether they assist the Organisation’s case or not.
Documents are undoubtedly the best form of evidence and will support the witness evidence in setting out what has happened. If there are no documents of key matters or vital points are omitted in the documents this will detrimentally affect the credibility of the case. For example, in a disciplinary process you would expect documents of the investigation (notes of meetings) with any supporting evidence (e.g. machine reports, time records, photographs, emails) disciplinary invite letters, notes of meetings and outcome letters with any rationale documents.
Organisations should have a custom of documenting the salient points arising out of all key conversations, actions and information. Good note taking is an important part in keeping records. Contemporaneous notes are preferable, and it is important that nothing is changed in those documents on receipt of case. It is not uncommon for Organisations to add into typed notes matters that are not included in the handwritten notes. However, doing so may lead to further cross-examination of the witnesses, particularly if the additions are crucial facts to the legal case. If possible, nominating one note taker will also minimize the areas for cross-examination as differences between notes of the same meeting will not arise.
Retaining documents, particularly in this data minimisation era is important. Organisations should have proper processes to ensure that relevant information/documents relating to potential legal claims are retained and not destroyed.
Witnesses are critical and will be expected to be able to explain what happened and the reasons for actions/decisions taken. The documents/records disclosed should support what the witness states in their evidence.
The majority of cases now deal with evidence in chief by way of a Witness Statement. Therefore, witnesses must devote the time and effort to set out their evidence in their statement covering all issues in dispute that they can give direct evidence on. The Tribunal will not allow witnesses to add to the evidence without good reason. Witness will be tested under cross-examination about the contents of their Statement and any discrepancies that may arise.
Witnesses must know the case and understand what they are responding to. Preparation is fundamental so that the Witness can give the evidence to the best of their ability.
Top 5 Tips on giving evidence at the Hearing is to:
- Always be honest.
- Listen, and respond, to the questions being asked (particularly any questions asked in re-examination as it is likely you responded incorrectly or did not properly understand a question put to by the other side during cross examination).
- Be respectful and dignified at all times.
- Do not defend the indefensible.
- Speak up, speak slowly and think before speaking.
Legal Advice and Alternative Dispute Resolution
The final two areas are seeking legal advice and alternative resolution. Legal advice is invaluable in making sure that you have correctly understood the law and any legal risks associated with actions/decisions. Legal support can also provide assistance when drafting or reviewing key documents minimizing the risk of claims. Statistics also show that those parties legally represented are more likely to do better at Tribunal.
When handling matters that look like they will result in a Tribunal claim, prudent Organisations will assess (with their legal advisers) the strength of case, risks of losing it and costs in running it. They will also consider the time spent in preparing for, and attending, Tribunal and the potential for reputational damage. The Labour Relations Agency (LRA) in Northern Ireland can assist even before there is a legal claim through the Non ET1 process akin to Pre-Claim Conciliation. Of course, the LRA will also conciliate once a claim has been lodged which can be extremely beneficial especially when dealing with the unrepresented claimant.
Organisations seeking to minimize the risk of claims and have the best chance to defend them should:
- Audit the level of communication that occurs both on an Organisation level in the workplace and individually to employee/s on specific issues. Can this be improved?
- Review how matters are recorded and documented? Is this sufficient to defend the case?
- Review if your Organisation follows their own processes and complies with their legal obligations? Are there areas that have lapsed that need refreshed or improved on? Is further training required?
- Do your Witnesses understand their role, and have they properly prepared so that they can respond to all aspects of the case they had knowledge of? Witnesses must devote time to preparing for the cases.
- What legal assistance is available to your Organisation and do you avail of that support at key times?
Michelle McGinley, Employment Lawyer at EEF Northern Ireland, a Not for Profit organisation supporting businesses by providing unlimited employment advice and legal representation. If you wish to know more about our services, please contact us on 02890 595050.