Disputes and Employment Tribunals

The press coverage of Employment Tribunal hearings means that employees are increasingly becoming aware of their rights to claim compensation from their employers and sometimes the sensational headlines mean that the decision of the Employer to contest the case can appear to be questionable. Whatever decision you decide to make in fighting the case or in reaching a settlement we can support and help you pick your way through the legal minefield that employers now face.

Deciding upon the merits of the case - how we can help you

Often employers are unwilling to give way to claims they consider to be without merit. This is where we can help employers make the right decision to contest the case that clearly has prospects of success for the employer or advise that defence of the claim is unlikely to succeed at the hearing and that they can make or should make an offer to settle the case.

Employment tribunals are courts in all but name

Procedures of Employment Tribunals were designed to create an informal environment where the panel of three hearing the case comprised one representative of the CBI, one representative of the TUC and a lawyer as Chairman. The Chairman has recently been replaced by an Employment Tribunal Judge. This is evidence that they increasingly resemble courts and that informality has all but disappeared from them.

The Employment Tribunals' powers to award costs and to stop a claim without merit

Employment Tribunals now have the power to award costs against the unsuccessful party but this award will only be made if the Claimant employee or the Respondent employer has pursued a “misconceived” claim or defence to a claim. Cases will proceed to a hearing unless the Employment Tribunal decides that the case should not be allowed to proceed or the opposing party successfully applies for the case to be struck out.

How we can help you to defend claims?

Unfair redundancy

In these fragile economic times employers are faced with the task of understanding the rules and procedures they must follow in making sure that a redundancy is fair and cannot be challenged at the Employment Tribunal.

The employee can claim that he or she was unfairly dismissed for redundancy because:

• There was no redundancy situation
• No or inadequate consultation took place
• There was an unfair selection
• There was no satisfactory search for suitable alternative employment

We can help you by assessing your documentation, your procedures and evidence to show that there was indeed a redundancy situation, that the consultation was fair and adequate, that the Claimant was fairly selected from a correctly identified redundancy pool of employees and by identifying whether you made a proper search to find the Claimant alternative employment within the company or firm.

Unfair Dismissal for misconduct and capability

The rules on when an employer can dismiss for misconduct and capability are well established. Summary dismissal should only occur for very serious misconduct known as "gross misconduct". This includes incidents of serious misbehaviour such as theft and violence. The employer should have in place a written procedure for prior written and verbal warning in cases of more minor misconduct and for dealing with suspension and dismissal in serious cases.

Similarly in cases of sickness and capability there must be procedures in place to monitor the capability and performance through appraisal systems and in fairly monitoring long terms sickness.

We can help you to design a handbook containing the correct and fair disciplinary and grievance procedures and to assist or guide you through them when you are forced to make the decision to dismiss or discipline an employee.

Disciplinary and Grievance Procedures

Employment Tribunals are legally required to take the ACAS Code of Practice into account and Employment Tribunals will be able to adjust any compensatory awards made by up to 25% for unreasonable failure to comply with any provision of the Code.

This means that if the Employment Tribunal feels that an employer has unreasonably failed to follow the guidance contained in the Code they can increase any award they have made up to 25 per cent. Conversely if they feel an employee has unreasonably failed to follow the guidance set out in the Code they can reduce any award they have made by up to 25 per cent.

The Code promotes the idea of voluntary mediation to resolve the dispute and this is a route that we can help to facilitate for you. Informal action should be taken whenever possible. In more serious cases formal action can be taken.

Defending Discrimination Claims

Direct and indirect discrimination is unlawful in the employment field as is unlawful discrimination by victimisation. Discrimination at every stage of employment is forbidden. Silver Shemmings can assist you to consider both your policies aimed at minimising the risk and in advising you on the merits, or otherwise, of any claims brought against you. For more information on this please refer to the separate page dedicated to this subject.

Should you require arbitral procedures drafted, assistance in bringing or defending a claim in arbitration or the services of an Arbitrator then please contact any of the following experts in the field of ADR and particularly arbitration:

For more information and initial advice please contact us on:

Sarah Shemmings or Richard Silver

Tel.:     0845 345 1244
Email:  office@shemmingsllp.co.uk

Robert Shawyer – Cardiff

Tel.:     02920 474 570
Email:  cardiff@shemmingsllp.co.uk

Don’t forget that you can also make initial contact through our free helpline 08455 1 92 92 1