Employment: prevention is better than cure
Following the abolition of Employment Tribunal ("ET") fees in July 2017, there has been a significant increase in ET claims. Receipts, disposals and caseload outstanding increased by 90%, 21% and 66% respectively in the months following the abolition. This is compounded by the fact that employers may well have to pay their own legal costs, even if they successfully defend a claim; the risk of an unsuccessful claimant receiving a costs order against him (ie. an instruction by the ET to pay part or all of the respondent's costs) is low.
This has raised concern across all sectors, including farm businesses, that any flaws in employment policies or management may be picked apart by employees deciding to pursue ET claims. Meritorious or not, defending these claims is generally time-consuming and costly. Furthermore a current backlog in the ET means claims are now being listed for hearing in 2020, thus prolonging the whole procedure. As with many things, prevention is better than cure – ensuring that management of staff issues, such as sickness absence, disciplinary issues and equality rights, is consistent, fair and proportionate, is important in mitigating this risk.
When dealing with any staff issues, even within a relatively small work-force, it is useful to bear the following things in mind:
Keep an eye out for the 'claim-builder'
The earlier a potential claim can be spotted, the easier it will be to defend or even stave off altogether. It is important to pay close attention to members of staff who, when action is discussed or taken against them, raise issues which they have not sought to raise before. This may include allegations of mistreatment against them personally, or more general issues regarding the business as a whole. Warning signs of claims in the pipeline also include employees who respond to management action with bullying or harassment allegations, take note of every procedural point in meetings and discussions, or those who make reference to a disability, their gender, race and/or age in order to try and obstruct proceedings.
Being aware of document disclosure rules
Even before potential claims are spotted, farm business managers should be aware that, if a claim is brought, all documents relevant to the issues in the case (subject to narrow exceptions) will need to be disclosed. This includes all relevant email correspondence, and even informal notes made in the margin of a document. Anything committed to writing should be considered carefully, bearing in mind how it may be perceived by the ET.
Dotting the 'i's and crossing the 't's on any ongoing internal process
Where a farm business has an on-going ET claim, and the claimant is still employed by the business, great care should be taken in carrying out any subsequent internal processes, to avoid separate 'victimisation' claims i.e. claims from the member of staff that they are being treated detrimentally due to their ET claim. Conversely, it is important not to be held to ransom by the claim, as this in itself can be damaging to the business. The challenge, therefore, is striking the correct balance during this process.
Finally, statistics show that the chances of defeating a claim increase considerably with legal representation.