Don’t panic about an Employment Tribunal

Oct 25, 2021

Businesses need to stop fearing employment tribunals.

This is one of the recurring themes I encounter when working with businesses. It leads to panic, poor decision-making and often proves to be an expensive exercise when it doesn’t need to be. I’m not going to pretend that ETs are always avoidable. They are not. You can have excellent HR systems, processes, managers and culture but this does not make you immune. Yes, I do encourage businesses to do all you can to limit and minimise the risk but be realistic, even the best performing businesses find themselves at a tribunal. You may still be unfortunate to be on the receiving end of one of those vexatious claimants. You know, they have a grudge, make up events and see a chance to ruin you and/or your business. Take a breath and get some advice.

The first thing I always ask businesses is ‘What is your biggest fear?’ It takes a while to get to the real issue which is usually a lack of knowledge about costs and reputational damage. Let me offer some advice and a reality check on this. The costs that you hear in the media are not the norm. Often claimants will look for outlandish amounts that are not realistic. For example, in 2015/16 the average pay out was between £13k and £21k. Remember, this does not include figures paid in settlement agreements which are usually lower than this given the aim is to settle in the interests of both parties. Reputation is another fear. You need to put this into perspective, how likely is it that anyone will read the public record? When is the last time you read about an ET in a paper? It is only very high profile.

The second thing I ask businesses is ‘who chooses what is expected of an employee and accepted?’ You, the business, right? The reason for exploring this is that I believe firmly that you choose who you employ in terms of behaviour and conduct. If I can take this a step further, consider the toxic and poisonous employee. We all know at least one. They have a disproportionate impact on the workplace and infect their negativity through a ripple effect. The team ends up spending most of its time trying to manage and circumvent this individual. This costs the business. So, consider, if the costs of keeping this individual because of fear of an ET is worth it? I am almost certain that their toxic behaviour is more damaging and costlier. I have seen poor performing employees have their workload reduced, been moved to new teams and other such examples which we all know is just avoiding the issue and not addressing it. This can be years of this toxic influence. Can you really afford to tolerate this because of the threat of being taken to an ET? I have never seen a case where this is true.

I hope this helps businesses to stop being frightened of the possibility of an ET. Let me be clear, if you have acted unlawfully then you need to acknowledge this and compensate the employee. This advice is about cases where too often, businesses avoid tackling issues or offer ridiculous sums of money because they don’t understand how employment law and ETs work.