Nipping it in the bud – how to avoid costly Tribunal claims

The House of Commons Justice Committee has published its review into Court and Tribunal fees, (click here to access review), finding that ACAS pre-claim conciliation is one of the key reasons for the recent decline in Employment Tribunal claims.

Since 6th May 2014 before a claim can be lodged with the Employment Tribunal (‘ET’), a claimant must first notify ACAS and a period of time be allowed for the parties to try and resolve matters via ACAS conciliation. A Tribunal claim cannot be commenced until ACAS has confirmed that conciliation attempts have concluded. Unfortunately, due to the lack of transparency and absence of substantive legal advice, many employers largely ignore the ACAS early conciliation process and are faced with defending the claim. However, in doing so may be missing out on a real opportunity. Seeking advice at an early stage allows an early assessment of the merits of a claim and the strength of a defence, plus allows for issues as to who the correct respondents are, or the status of the individual to be clarified. This assessment can also provide a good platform from which to settle claims should a commercial decision be made to do so either because a claim has merit, or to minimise costs and management time. It is worth noting that legal costs are unlikely to be recovered from the claimant, even if a claim is successfully defended.

Sofie Lyeklint, employment law specialist at Lawspeed said “The best time to resolve a Tribunal claim is often before it even reaches that stage. Pre-claim conciliation, with the right advice, can prevent the need for a claim where there is some merit to it, allow employers and recruiters to settle meritorious claims without incurring significant costs, and in particular with regard to agency workers can prevent unmerited or mistaken claim based upon misunderstandings about employment status.”

The report also addressed fees in the ET, finding that they may be a bar for some claimants and suggesting that the level of the fees should be substantially reduced.

If you are faced with a potential claim, or even concerned that a complaint or issue could turn into a claim, do not ignore it, get good advice, know your strengths and weaknesses in order that you can make an informed decision, and if right for you try and nip what could be a costly claim in the bud. For advice on disputes or claims relating to candidates or employees, including any threatened or actual Tribunal proceedings, contact Sofie Lyeklint on 01273 236 236 or [email protected].

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