What are the events leading up to a tribunal claim?

Figures in the latest Survey of Employment Tribunal Applications (SETA) compiled and released by the Department for Business, Energy and Industrial Strategy (BEIS) make interesting reading about the events leading up to a tribunal hearing.

Tribunal claims do not come out of nowhere; there is a series of events that occurs before any claim is made and progresses to the tribunal and it is during these events that chances are presented for either party to head off the claim and stop things going any further.

Pre-claim discussions

Although things may become heated, it is a good idea to try and hold discussions between the employer and the employee before a claim is submitted. This can help to informally resolve grievances and stop things escalating further.

Discussions between parties in an employment dispute before a claim are more common that might be first thought; figures show that they took place in over half of cases.

In most cases (85% of meetings held), claimants said that these discussions took place before ACAS Early Conciliation. However, if the employer wrote to the claimant about the issue, claimants said that this often happened either during (24%) or after (22%) ACAS Early Conciliation. In some of these cases the employer had also written before it had started.

Terms and conditions – get it in writing

An important role is played by written terms and conditions together with workplace rules and procedures; these help clarify the basis of the employment relationship and can assist in avoiding the escalation of workplace grievances and disputes.

When asked whether an employee had been given a written statement of terms and conditions, considerably more employers (91%) than employees (73%) said yes.

When a similar question was asked about written disciplinary and grievance procedures, the difference between employers (95% yes) and employees (55% yes) was notably more marked.

This may have more to do with an employee’s faulty memory than a lapse on the part of the employer. It is a simple thing for employers to prove that they have supplied a written statement of terms and conditions as well as written disciplinary and grievance procedures; an employee signature and date when received will confirm this.

Statistics show that written procedures were more likely to be in place where the claimant was unsuccessful at the tribunal hearing, compared with cases where the claimant was successful. For those employers who are uncertain about what should be in written terms, conditions and procedures, expert legal advice is invaluable and can help avoid future problems if a tribunal claim is submitted.

After the tribunal

It is very unlikely that an employee who has brought a tribunal claim will still be working for the employer afterwards. Over nine in ten claimants (94%) were no longer working for the same employer against whom they had brought the Employment tribunal claim. Of these claimants, 46% were dismissed, while 24% resigned and 16% were made redundant or laid off.

ACAS Early Conciliation

The Early Conciliation process was introduced in April 2014 and was intended to involve a neutral party, in this case ACAS, who would work with both sides to try and achieve a resolution before the submission of an Employment tribunal claim.

A large majority of cases involved ACAS Early Conciliation: nine in ten claimants said that they agreed to take part, as did 70% of employers. It should be noted if the claimant does not agree to take part in Early Conciliation, the employer will not have been invited to do so. When employers did not agree to Early Conciliation, this was most commonly because they did not think they had a case to answer, or because they were not willing to negotiate.

Why could Early Conciliation fail?

If ACAS Early Conciliation did take place, the main reported reasons for it failing to produce a settlement were that the employer felt they had no case to answer (mentioned by 27% of claimants and 18% of employers), or that the employer offered a settlement but the claimant was not willing to accept it (19% of both claimants and employers).

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