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Tribunal claims rocket - and what to do if you receive one

Of course tribunal claims were bound to increase – when fees were introduced in 2013 the number of claims plummeted 70%+, now the fees have gone…guess what? Employment lawyers are busy, but what can a sensible employer do to minimise their chances of becoming a statistic?

Of course tribunal claims were bound to increase – when fees were introduced in 2013 the number of claims plummeted 70%+, now the fees have gone…guess what? Employment lawyers are busy, but what can a sensible employer do to minimise their chances of becoming a statistic?

Since the abolition of tribunal fees in July the number of employees who have lodged claims against their employer has rocketed 64%. These are provisional numbers, given the natural seesaw effect, they are likely to climb to above 70% or even towards 80% to reflect the general increase in the employed population since the original introduction of fees in 2013.

It’s not difficult to see why. Fees were introduced to dissuade ‘false litigants’ reflecting a belief at the time that quite a lot of claims were brought by spurious gold diggers egged on by greedy no win no fee lawyers predicting that employers would settle up rather than face the cost of defending a claim, which can run into tens of thousands (win or lose.)

When fees arrived the claims plummeted, but the law lords believe that the fees were too high – they felt that £250 to lodge a claim + £950 to go to a hearing was a barrier not just to the gold diggers, but to the genuine claimants who had been wronged by their employers, but who were put off by the fees adding presumably to their reduced income situation, assuming that most claimants had in fact been sacked.

It is a fact that following the re-introduction of a fee free claims for employees employers are now more at risk of claims. It goes without saying of course that if employers behave decently towards their employees they are less likely to receive a claim.

But if you are unlucky enough to receive the solicitor’s letter (or a call from ACAS) here are our top tips based on two decades of successfully resolving employment complaints.

  1. Don’t panic
  2. Think before you instruct a solicitor. Solicitors charge by the hour, and a protracted case is not in your interest, or the claimants….but solicitors charge by the hour…..the longer it takes the more they charge
  3. Look at what the complaint is, and what remedy is being suggested, but don’t be panicked into a knee jerk response – there is plenty of time – weeks if necessary (and a couple of weeks at least to get the initial response in.) That said, don’t sit on it until the day before the response deadline!
  4. If there is some vulnerability in the case and the settlement suggested is minimal, it may be sensible to negotiate – but take advice. An employment lawyer can risk assess for you, but so can an HR company like myHRdept – usually for a fraction of the lawyer costs
  5. If you do negotiate, take advice again. If a number hasn’t been mentioned we normally asked (without admitting liability) what the claimant has in mind. Normally a settlement would be a lot less than the start point.
  6. If you use an HR provider CHECK they have pre-litigation experience – the HR person who runs your training workshops probably won’t have a clue (myHRdept by contrast spends at least 50% of its time dealing with employment cases and operates in much the same way as an employment solicitor – in fact one of our staff used to be an employment solicitor!)
  7. Get an accurate as possible cost estimate for how much defence would be for the following stages: a) To risk assess and explore a settlement via ACAS culminating in a legal settlement (called a COT3); b) To take defence to ET3 stage...; c) ...and then to ‘day before hearing...; d) and then to the hearing
  8. Assess whether your costs might be assignable to the other party (rare, but sometimes a costs warning will help tactically)
  9. If going to a hearing, consider instructing a barrister directly to save costs – barristers can now be openly instructed - in times past only solicitors could do this. If you do instruct a barrister (myHRdept can do instruct one for you) it is normally a good idea to do this prior to witness statements being prepared.
  10. And the golden rule. Note the timescales from the point you receive the ET1 (the tribunal claim form – this is different to a solicitors letter or an ACAS call – it will normally follow on from these) and DO NOT miss any of the deadlines or you may forfeit your defence.

If you're thinking of outsourcing your HR why not contact myhrdept.co.uk. With HR Outsource packages from only £140 per month (and from as little as £80 per month for start-ups) and support for HR Projects available for one-off issues, we believe we offer the best combination of quality and price available in the UK. Call us on 01628 820515 to discuss your requirements contact us and we’ll call you back.


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