Breakfast Forum newsletter – September 2009
Litigation was the topic at our September Breakfast Forum, expertly led by employment law barrister Daniel Barnett.
The introduction of the 2008 Employment Bill is placing greater emphasis on mediation as an alternative to litigation, and this will be discussed at our next forum on Friday 16 October. Acas conciliator, Jane Coward, will lead our discussions and explain the finer points of mediation. The Bill is placing greater emphasis on the Acas Code of Practice as well as facilitating greater involvement by Acas in conciliation. For employers, understanding the mediation process and complying with the new Code of Practice are essential.
If you are interested in attending this forum on 16 October, please contact anne@employment-relations.co.uk, tel: 01303 840001.
In September Daniel Barnett gave Breakfast Forum members an insider’s view of employment tribunals and some dos and don’ts for employers.
He debunked a common misconception that tribunals are always on the employee side. Tribunals recognise that there is a difference in the balance of power between employers and employees. Employers should know what they are doing, whereas employees do not always. Therefore tribunals want to see a demonstration from people presenting a case that employers are aware of this imbalance.
Tribunals are looking for evidence that employers recognise the importance of their decision in getting rid of an employee.
Tribunals have to justify their decision by using a legal precedent, to justify what is often an instinctive decision. Legislation often changes with new governments and most of the discrimination and working time directives law comes from Europe.
Daniel gave some interesting tribunal statistics. From April 2007 to March 2008, 189,000 claims were accepted, of which 41,000 were for unfair dismissal, 35,000 for unpaid wages, 63,000 for equal pay (usually public sector claims) and 27,000 for sex discrimination. Only one in four claims makes it to tribunal, and a great many get sorted in one day. In cost benefit analysis a long tribunal rarely happens.
Only 461 cases were awarded costs, and employers never get back the true cost of loss of management time and what they pay to the lawyer.
There were 235 successful appeals out of 466.
The average award (made on the basis of loss of earnings) was £8,000 and the highest was £227,000 for disability discrimination. The city banker awards are a once in a lifetime phenomenon.
When do you fight, when do you settle?
Not surprisingly, most cases settle: this is usually in an employer’s interest. However, employers do not want to get a reputation for throwing in the towel by agreeing early settlements too often. They:
- do not want to be seen to be capitulating
- do not want to put up with an employee pulling a fast one
- may want to fight as a matter of principle.
Daniel outlined the four processes involved in tribunal claims: putting in a defence, disclosing documents, witness statements, and the hearing.
1 Defence
The defence sets out in outline the grounds of your defence. Although it is very tempting to express your outrage, don’t do it; take it seriously; explain why you want to defend the claim; give a basic chronological account of events, why the dismissal was fair, etc. It has to be 100% correct and character assassination is never a good idea.
2 Disclosure of documents
Documents win cases, not people. They are of fundamental importance. Tribunals hate employers who do make piecemeal disclosures. Never create or hide documents, you’ll be found out and lose the case.
3 Witness statements
These are the bane of every employer. They have got to be word for word what you will say to the tribunal. You will also be cross-examined about the minutiae of that document in tribunal and Daniel’s advice is:
- a good statement makes you better prepared
- look at the document well in advance, get to know it well, go to bed with it
- identify areas of difficulty.
4 Giving evidence
The three people at the bench include the judge (a lawyer sitting in the middle), and two wing members, one from the CBI and one from the TUC. They are like magistrates, sitting a few times a year.
Your job is to tell the truth, winning the case is the lawyer’s job; stay calm; never say “I had no alternatives but to dismiss her”; use short answers, it makes it harder to cross examine; and finally, don’t argue with the lawyers.
