Employees should be able to raise legitimate concerns about their treatment by their employer and access to justice is a fundamental principle of our society. The real questions are should there be some other steps they have to take before putting disputes firmly in the legal arena and how do you prevent the unjustified complaints from being brought.
There are arguments on both sides as to whether the ability to pursue a matter to tribunal should be easier or harder. Certainly the view we get from employers is that they feel that provided an employee ticks the relevant boxes then their claim is accepted and companies have to defend matters with the merits of the case not being considered until a lot of time and work has had to be put in, with those costs being irrecoverable. It is not surprising that many employers feel disillusioned by a system that they feel doesn’t seem to recognise that businesses don’t have the money lying around to defend claims and are in a position where it is cheaper to settle a case even when they know they are in the right.
As we don’t know how the costing regime is going to work it is difficult to determine whether or not it will have a positive impact. The costs for filing claims may deter some claimants but that could apply equally to those claims that should be able to proceed to hearing as those that shouldn’t. Without some kind of assessment process to identify the questionable claims or defences with a view to sifting those out, or any obligation to act reasonably in relation to conciliation, then the new system may just be delaying the inevitable.
Although a compulsory conciliation period could be helpful, the fact that parties are not obliged to take part in it, or act reasonably, means that it will probably not deter the unreasonable claims. While in no way suggesting that parties should be forced to settle, it would be helpful if both parties at least had to speak to the conciliator to set out their position to see if settlement was appropriate or if either party appeared to be acting unreasonably in insisting the matter went to tribunal.
The impact of the change in the qualifying period for a claim for unfair dismissal from one to two years is harder to predict. The likelihood is that more employees will look for ways to bring a claim that bypasses that restriction. Those claims may be harder to prove and so more likely to be unsuccessful, but may well result in more time and expense having to be incurred to get to that result.
We would be best served by trying to resolve genuine claims before they reached the tribunal stage where possible while stopping those parties, on either side, from putting matters through the tribunal system when their position is simply insupportable. What we really need is a change of approach and that isn’t currently an available option.
For any further information regarding Employment Tribunals, please give the Peninsula Advice Service a call on 0844 892 2772.
Is It Too Easy For Employers To Be Taken To Employment Tribunal?
March 09 2012