Is the employment tribunal system failing employers?

Is the employment tribunal system failing employers?

First came the furore over the decision to charge claimants fees in employment tribunal claims, with UNISON applying for several Judicial Reviews on the basis this made it excessively difficult for some employees to exercise their rights.

Now, the Law Society itself is calling for a major overhaul of the whole tribunal system, this time on the basis that it is causing problems for employers, as well as employees. So is the current employment tribunal system failing employers?

Steep fall in number of employment tribunal claims

Many employers already feel the system has been improved with the introduction of claimant fees. This is because, since the introduction of these fees in July 2013, there has been a marked decline in the numbers of workers making claims against their employers.

To give you an idea of the size of this decline, in the year to June 2013, employment tribunals received on average just under 13,500 single cases per quarter. Move forward one year and, according to the Ministry of Justice, the number of employment tribunal claims brought by one person and received in April to June 2014 was 3,792. That is a 70% drop compared to the same period of 2013.

In addition, the number of claims made by multiple persons fell from around 1,500 in April to June 2013 to around 500 in April to June 2014; that’s a 69% decrease.

Many people feel this fall is primarily down to employees finding the fees unaffordable. However, the High Court has so far found no real evidence of this. Instead, many employers feel the introduction of fees has led to staff taking a more considered approach to the likely success of their claims where it is their own money being used to pursue the matter.

However, whilst the introduction of fees might have prevented organisations from having to deal with more tenuous claims, the Law Society still believes the current system is unnecessarily difficult for employers.

Employers still blighted by employment claims process

In its consultation paper, ‘Making Employment Tribunals Work for All’, The Law Society claims that the complexity and cost of responding to claims is a burden for employers. As a result, it suggests a number of proposals for reforming the structure of the system.

In essence, it proposes that all employment law disputes be dealt with in a single jurisdiction, which should become a court rather than a tribunal. This court would consist of four levels with simple cases handled on a paper basis (level 1) and more complex cases heard by an experienced judge (level 4). What is more, it recommends that arbitration or mediation should be encouraged across the whole system.

Interestingly, the level 1 approach would prove a cheaper process for employees looking to make simple claims. However, it may also favour employers because of the better resources they generally have to help them deal with cases based purely on documentary evidence.

Bob Teasdale, Operations Director at HR software firm myhrtoolkit says: “It’s debatable whether this paper-based approach for simple cases will be better or worse for employers. However, it does emphasize the ongoing importance of keeping documentary evidence relating to any issues.

“Whether or not the Law Society’s proposals are adopted, an employer’s chances of success will always be improved by following the correct procedures and keeping a comprehensive record of all related communications, whether it be for grievance, absence, disciplinary issues or appraisals.

“In these cases, lost and mislaid documentary evidence can make the difference between winning and losing a case, so employers should try to ensure they use good HR software that comprises document tracking.

“By using the system to record what was discussed and agreed at critical meetings and getting your employee to confirm via the software that they have read and agree with these records, you will have clear evidence of the whole process, making it much easier for a tribunal to see you have handled the matter professionally and with consideration”.