Defending Unreasonable Employment Tribunal Claims
There were 132,577 claims to the Employment Tribunal in the last recorded year including a substantial number of claims for unfair dismissal. There is no fee for making the application and the Tribunal will not normally award costs against the employee who loses their case. Given that many businesses are prepared to offer settlements rather than waste time and legal costs, there is a financial incentive for employees to bring claims even where there is a low prospect of success.
The policymakers have attempted to deal with this issue through Pre-Hearing Reviews. This is a short hearing (normally about 30 minutes) in which the Tribunal consider whether the employee has any reasonable prospect of success. The Tribunal will not hear evidence from witnesses or review documents but will consider the contents of the application to the Tribunal and the employer's response. The Tribunal will hear short submissions from both parties and make a decision (there and then) as to whether the claim has a reasonable prospect of success.
If the Tribunal determine that the claim has no reasonable prospect of success, then the employee can be ordered to pay a deposit as a condition of continuing with the claim. Most significantly, the employee will be warned that, if they continue with the claim and eventually lose, then they may be liable to pay the employer's legal costs. These costs are often substantial (typically between £3,000 and £6,000) and, given this risk of costs, most employees will chose not to pay the deposit and their claims will be at an end.
Although Pre Hearing Reviews have been in existence for some time, they have been relatively unpopular since employers were generally required to attend a hearing in person. However, the Employment Tribunal Service has now adopted a policy of dealing with Pre Hearing Reviews through a telephone conference. The employee (or their representative) and the employer (or their representative) will take part in a three way telephone conference with a Chair of the Employment Tribunal. Given the relatively low legal costs and management time costs of this telephone conference, it is often in the interests of employers to use the Pre Hearing Review system as a way of ending weak claims.
Given that employment law is primarily concerned with fair procedure, most employers who have adopted a fair procedure (whether for redundancy or for disciplinary reasons) can be fairly confident that they will succeed at the Pre Hearing Review and thereby save substantial time and costs.
October 2008
This article gives a general overview only and the legal position at the time of writing this article. It cannot be relied upon in any particular case. Specific legal advice must always be considered to include consideration as to whether the legal position contained in this article has changed since going to print. For further information and advice, please contact Paul Archer, Helen Climance or Lauren Harkin on 01793 527141 or alternatively by email on Paul.Archer@lemon-co.co.uk, Helen.Climance@lemon-co.co.uk or Lauren.Harkin@lemon-co.co.uk.
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<p><strong><a href="http://www.lemon-co.co.uk/article_defending-unreasonable-employment.php">Defending Unreasonable Employment Tribunal Claims</a></strong><br />
There were 94,450 claims to the Employment Tribunal in the last recorded year including 41,611 claims for unfair dismissal. There is no fee for making the application and the Tribunal will not normally award costs against the employee who loses their case. Given that many businesses are prepared to offer settlements rather than waste time and legal costs, there is a financial incentive for employees to bring claims even where there is a low prospect of success...</p>
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