ADVICE GUIDES

Avoid the Tribunal

Employment and discrimination tribunals can pose significant risks to employers, with potential financial costs, reputational damage, operational disruptions, and negative impacts on employee morale. This guide provides essential strategies to stay compliant with statutory requirements and minimise the risk and impact of tribunal claims, ensuring your business is well-prepared to handle any disputes that arise.

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Disciplinary

Stay Compliant and Avoid Tribunal Risks

Employment and Discrimination tribunals are judicial bodies that resolve disputes between employers and employees regarding employment rights. These tribunals handle a variety of claims, including unfair dismissal, discrimination based on race, gender, age, disability, and other protected characteristics, wage disputes, and breaches of employment contracts.

Recent findings from the 2023 Employment Tribunal Annual Report show that the majority of Jersey claims are for unfair dismissal or discrimination. Too often employers lose on the technical aspects such as failing to provide contracts or payslips.

The impact on employers

  • Financial Costs: Even if the employer wins, the costs associated with legal representation, time spent preparing for the case. Let alone compensation payments that can be substantial if you lose.
  • Reputational Damage: Tribunal cases, especially those involving discrimination, can harm an employer's reputation, leading to loss of business, difficulty in attracting talent, and negative media coverage.
  • Operational Disruption: The time and resources required to deal with a tribunal case can disrupt normal business operations and distract management from focusing on core business activities.
  • Employee Morale: Ongoing tribunal cases can affect the morale and productivity of other employees, potentially leading to a less positive workplace environment.

To minimise the risk and impact of tribunal claims, employers should:

  • Issue Written Statements of Terms of Employment: Provide every employee with a written statement outlining their employment terms. Jurisdiction legal requirements vary, for Jersey these must be issued within 4 weeks of their start date. Ensure both parties sign to confirm receipt and agreement.
  • Provide Itemised Payslips: Give employees an itemised payslip detailing their earnings and deductions each pay period on or before the pay date. While digital payslips are preferred, if you use paper, document their distribution to avoid disputes.
  • Maintain Clear Policies: Ensure your policies are robust and outline key processes, reporting mechanisms and the consequences of policy breaches. Ensure all employees are aware of these policies from onboarding and throughout the employee lifecycle. Evidence employees have received and reviewed a copy of your Handbook or policies. Review and update your policies in line with changes in legislation and best practices and consistently follow these policies in all cases to build trust with employees and provide a strong defense in the event of a tribunal claim.
  • Track Holiday: Ensure that holiday allowances and taken holidays are documented correctly and transparently. Make holiday policies and records easily accessible to employees, ensuring they understand their entitlements and balances. Upon an employee’s departure, pay any outstanding accrued but untaken holiday to ensure compliance. Use HR Systems to have an accurate central point and track these correctly.
  • Follow a Fair Process: Conduct thorough investigations. Gather all relevant facts and evidence, collect statements and ensure a fair assessment of the situation. Do not jump to conclusions or make decisions before investigating or hearings are conducted. Ensure all decisions are evidence based and are fair and impartial.
  • Management Training: Regularly train managers on managing and applying your policies and handbook as well as employment law legislation changes. They should be well equipped to handle complaints and manage conflicts fairly.
  • Seek Expert Advice: Consult with HR professionals or legal advisors to stay updated on legal requirements and best practices. They can provide valuable insights and support in developing and implementing effective HR strategies. This is even more important when managing complex employment issues and Tribunal claims.

The process if a Tribunal claim lands:

  • Claim Form Received: An employee (claimant) submits a claim form to the tribunal.Response Form: The employer (respondent) must complete and send a response form within 21 days of the day the claim was sent to them.
  • Stay for Conciliation: The claim will be "stayed" for 21 days while the parties are encouraged to attempt to resolve the claim via conciliation at JACS, which normally takes 1-2 weeks. This conciliation only happens if both parties agree.
  • Case Management Hearing: This hearing identifies the issues and witnesses, issues directions for the disclosure of documents, exchanges of statements, and confirms the process for agreeing on the bundle/file and setting the date(s) of any necessary hearings. There may be more than one case management hearing.
  • Interim Hearing: This hearing deals with any issues of law that need to be determined before proceeding to the full hearing.
  • Applications and Orders: Either party can make applications asking the tribunal to vary or enforce the directions or to make a strike out order.
  • Final Hearing: This is the hearing where evidence is heard, and the case is decided. A Judge sitting alone will hear most cases. Discrimination cases involve a panel of three. The pleadings are considered, witnesses give evidence under oath and are cross examined and a decision is made on the claims. An appeal can only be made against the decision on a point of law.

What you need to do...

On Receipt of the Claim:

  • Risk Assess the Case: Determine the strengths and weaknesses of your position. Evaluate if you can win, if you should apply for a strike out, or if settling is a better option. Estimate potential settlement amounts.
  • Gather Key Documents and Data: Collect all relevant documents and data to prepare a comprehensive response. Ensure you have everything needed to support your position.

Prepare the Response:

  • Tell Your Story: Focus on presenting your narrative clearly rather than just rebutting and commenting on the claimant’s narrative. Provide a thorough and coherent response by the deadline.
  • Request Further and Better Particulars (F&BP): If the claim is inadequately detailed, issue a request for more specific information and reserve the right to amend your response. Remember that your response will serve as your "pleadings," and some Chairs may strictly limit your case presentation to what is included in these pleadings

Conciliation Process:

  • Attend JACS for Conciliation: If both parties agree to conciliation, participate in the process reasonably. Use this opportunity to explore settlement options and resolve the dispute amicably.

Witness Preparation:

  • Prepare (Not Coach) Your Witnesses: Ensure your witnesses understand the process and are prepared to present their statements clearly and confidently without being coached.

Project Management Approach:

  • Treat the Process Like a Project: Diarise important milestones, plan each stage carefully, and debrief after each phase to evaluate progress and adjust your strategy as needed.

How can we help?

We can help with all stages:

  1. Risk assessing and responding to claims
  2. Project manage the entire process at every stage.
  3. Representation at Hearings.

if you’d like to know more call 747559 and let’s chat!

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