1. It's not a personal issue
2. Own goals by the claimant
3. Own goals by us
4. Understanding the settlement
5. Documents
6. Witnesses
7. Limiting damage
8. The hearing
1. Treat it as a business issue – not a personal issue
Your decisions in relation to the Claim, including whether to settle and how much for, should be made on the basis of what is best for the business.
What is best, not just in terms of money, but also in terms of the impact on the business and management of spending 12-18 months dealing with the claim.
You May not like them...
You may not like the Claimant. In fact you probably don’t like them at all. But try not to let personal animosity get in the way of making the right decisions.
2. Own goals by the Claimant
There are lots of ways a Claim can be thrown out on “technical” grounds.
The main one is time limits.
Time limits are strictly applied. If the employee has missed a time limit, it will be hard to persuade the Judge to allow the Claim to continue.
So, check the date on which the employment terminated, check the date on which the Claim was received by the Tribunal, and check the dates on the ACAS early conciliation certificate – with a bit of luck, the Claim may be out of time.
3. Own goals by us
Do not commit to a story in the Response which we end up having to change (because it’s untrue or misleading) once we have seen the documents and spoken to our witnesses.
If we aren’t sure what actually happened, keep it vague.
Changing our story part way through a case will not do much for our credibility.
4. Settlement
Right at the start, work out legal costs and likely compensation if we lose.
Identify how much of our time this case will take up and how much of a distraction it will be for our management.
Consider the wider impact of either settling or going to a hearing – e.g. do we want to appear conciliatory to our staff or send out a message that we will fight every claim come what may (or perhaps those we think are unjustified)?
Conduct this analysis at the outset. Decide whether to try to settle quickly or to wait and see.
5. Documents
Check what we have. At an early stage. Is there anything which will cause a problem for us at the hearing?
Businesses are often careless about what they say in internal emails, not realising that they will have to be disclosed if there is a Claim.
Not infrequently, they also inadvertently copy in the wrong person. In one of our cases an employee’s line manager sent an email to the HR Manager saying that the employee was a “psycho” and insisting that HR find a way to get rid of him.
HR replied saying that they would sort it out – and (unhelpfully) copied in the employee. If there are damaging documents, we need to know ASAP, so we can work out how to limit the damage.
6. Witnesses
Go through the key documents with our witnesses and discuss what the case is about.
Ask them questions about their evidence.
Assess how they will come across. Honest? Evasive? Angry? Arrogant?
We have time to teach them how to be a better witness.
Going back a few steps - choose people, to deal with disciplinary and grievance hearings and other internal issues, who will be good witnesses if it comes to a hearing in the Employment Tribunal.
A poor witness can lose you the case, however good your preparations.
7. Attack compensation
If we can’t settle the case, we don’t want to lose. Whether we want to or not, we may end up losing if our case is weak and we haven’t managed to settle it. But, losing need not be the end of the world.
In the Employment Tribunal, there are lots of ways to limit the damage, by reducing compensation. Put these damage limitation arguments together at an early stage.
It will help to drive down the cost of settlement, by putting pressure on the Claimant – making them realise that even if they have a very good case they may end up with not much compensation, so why bother going to a hearing if there is a decent offer on the table?
8. The Hearing
Be respectful to the Clerk. The Judge talks to the Clerk and will often ask them about the parties. Be respectful to the Judge, for obvious reasons. Be civil to the Claimant and their witnesses.
We want the Judge to warm to us, or at least not dislike us. The Judge is a normal human being. We tend to side with people we like. If it’s a marginal call, being nice might just sway it in our favour.