The employment tribunal is not something any employer particularly relishes. Omar Khalil provides some expert advice for HR professionals facing a tribunal claim and, ultimately, a hearing.
An employment tribunal should be viewed as the forum through which all of an employer’s decision-making prowess, and the nature and integrity of that decision making are scrutinised.
Inevitably that scrutiny focuses on the evidence of what has happened. People’s memories cannot be relied upon, so it is important to have a “paper trail”. That alone can be the source of many issues. With an increased awareness of data protection rights, an employee’s “subject access request” forces employers to give full disclosure of every email and document about an employee, often going back many years.
It’s advisable to seek professional help from a law firm or consultancy before a tribunal. A mentoring session with the witnesses who are going to give evidence is a good way to prepare them for the day. This session will clarify expectations and gives guidance on the process and procedure of the tribunal. One of the best ways to prepare for a tribunal is to attend a mock tribunal training programme. This re-enactment of a real-life tribunal is an excellent way for people to not only understand what an employment tribunal entails, but in particular to experience the level of in-depth questioning they can expect
When a tribunal has a negative outcome for the employer, they must expect to pay financial compensation or awards. In unfair dismissal claims – the most common claim in the UK – there is a cap on the damages of one year’s gross salary.
In discrimination claims financial compensation is uncapped and can include an ‘injury to feelings’ award, the highest scale of which can lead to substantial awards. Discrimination claims are also pursuable against a named individual such as line managers or even HR professionals, not just the employer. In case of a negative outcome, an award can be made against both the company and the named individual.
One consequence of a tribunal that has gone badly which is often overlooked, is the subsequent impact on management, HR and witnesses involved in the process. It is not uncommon for those employees who have been involved in a tribunal to be impacted by the experience, sometimes being signed off with stress afterwards.
It’s important to point out that a large number of employment disputes are resolved before going to trial. The parties either reach an agreement through Acas, through an independent workplace mediator or privately.
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