Most of our clients are terrified of the thought of ending up in an employment tribunal, not because they have done anything wrong, but because of the hassle, aggravation, time and money it takes to defend the case. Although the UK government have brought in charges in the hope that this would reduce the number of spurious claims, many employees are still able to find a solicitor willing to take on their cases and make something out of not a lot!
With this is mind, I was very interested to read an article this week which provided 5 reasons why companies lose employment tribunals and they are not what you might think!
The first reason that a company may lose a case is because they are not likeable. As with everyone else you meet in life, an employment tribunal chairman is human with their own likes and dislikes. If the facts of the case mean that both the employer and employee could be right, perhaps a case of ‘he says she says’, then the chairman may go with a gut instinct about who is the ‘good guy’ in this struggle.
As the employer, your job (or that of your defence team) is to win over the affections of the judges so that you are perceived to be the good guy. The winning over may actually happen as a result of what has happened in the workplace. If you can demonstrate that you have always tried to be supportive, that you have always had the best intentions and that you have genuinely cared, but the employee has just taken advantage of you and left you no alternatives, then the judges may see you very differently if the behaviour which has led to the tribunal is part of a string of normal, perhaps bullying behaviour.
However, if the winning over needs to be done in the court room:
• Remember your manners
• Don’t argue
• Don’t talk over people
• Show empathy
• Admit any situation, where with the benefit of hindsight you could have done something differently (as long as this does not undermine your case)
The second reason identified as likely to lead to losing a case is loss of evidence.
Now this one made me laugh and took me back to October 2004. I was working in a further education college and was helping with an HR department to relocate. There was a locked filing cabinet and nobody could find the key. I refused to move the cabinet into the new, much smaller office space unless we knew what was in it and eventually called facilities and asked them to bring me a crow bar!!!
When the caretakers came up with the crow bar they kindly did the breaking for me and in 3 of the 4 drawers we found all the evidence for a tribunal case which had taken place 2 years earlier and the college had lost because they didn’t know where their evidence was. Seeing the contents of the filing cabinet, one of the HR team said ohhh, that must have been Mrs Jones’ filing cabinet, I think she took the keys with her when she left.
Regardless of the merits of the case, they deserved to lose if they didn’t have the wherewithal to work out where their evidence might be, given that it was in the corner of their office all the time.
Not having the right documentation in place at the time the incident / behaviour happened is the third reason given for employers losing an employment tribunal.
This is a problem that we have identified among our new clients, who tend to come to us once they have a problem and by that time, it is sometimes too late to put the right policies, procedures and practices in place. We find ourselves shutting the stable door after the horse has bolted.
For an employer to have a mandate to manage their business the way they want to, they need to have the right policies and procedures in place which are documented, communicated and complied with. Failure to do this just exposes your business to so much unnecessary risk. This is actually what led us to develop our HR in a Box™ product to enable micro businesses with up to 10 staff to adequately protect themselves.
When you are preparing your case for the employment tribunal, you will need to provide evidence of policies, communication etc in your bundle and it is essential to your defence that you can produce these.
The next reason why an employer may lose a tribunal may be down to the quality and preparation of their witnesses.
For anyone, the thought of giving evidence in a court or tribunal can be very daunting, so ensuring that your witnesses are properly prepared, fully understand what they are there to get across and are focussed on their facts is essential. The opposition will try to make things as difficult as possible for your witnesses, will try to undermine their credibility and to confuse them about their story. Your witnesses need to be prepared for this, even to the extent of role play cross examinations prior to the tribunal so that they know how it feels to be aggressively questioned and challenged.
Finally, employers need to show passion. You need to show that you truly care about your business, your staff and the situation you have found yourself in. You need to make the time to prepare properly for the case, you need to prioritise the headache of the tribunal at an early stage, so that you create the time and space needed to provide a consistent, passionate and robust case.
So, in summary:
1. Be likable
2. Don’t lose your evidence
3. Make sure policies and procedures are documented now to avoid problems later
4. Make sure your witnesses are adequately prepared and know what to expect
5. Have passion and be consistent
To add a cheeky sixth point here, a lesson from my Scouting Days ……. Be Prepared. A strong case can fall apart if not properly prepared and a weak case could win if enough preparation has gone into it.