Litigation – have you got a letter, a letter for me?

February 11, 2007 8:39 am Published by

Perhaps the most unwelcome post an employer ever receives is from the Employment Tribunal announcing that an employee has made a claim. It is the start of a long path, involving time, expense and hassle, and often a sense of vulnerability even if the employer considers that they have done nothing wrong. The ostrich approach is not sensible as an order may be made against the employer without a hearing, with the Tribunal deciding how much the employer must pay out.

Most employers who receive a claim feel they are on a conveyor belt over which they have little control. The usual question is: what happens next?
The employer usually has 28 days to send in their side of the story, and care needs to be taken with this defence. A specialist lawyer will give advice as to who is likely to win, what its worth, and whether it would be better to settle up.

From the start action must be taken to minimise the risk of losing and get it right procedurally. An ACAS Conciliator tries to help settle the claim and keep it out of the Tribunal. The lawyer will be doing all that is possible to reduce the risk of losing and/or to settle for the minimum amount.

Some cases are so pathetic that the employee is very likely to lose and the employer may choose not to settle. However, because of management and legal costs, there may be “nuisance value” in settling, even if this is paid over through gritted teeth. On settlement the claim ends and the grief is over.

Otherwise, there is an inevitable chain of events: exchange of documents, statements etc. A date is set for the Tribunal hearing, often about 3 or 4 months ahead. The lawyers will aim to convince the employee that they will lose and low settlement would be a good deal. If the matter comes to a hearing, then the Tribunal decides between the parties.

Sadly, the employer’s costs are almost certainly not recoverable even if the employee loses. So once it has landed on the mat, the defending of a claim, with the inevitable time and cost, is a cross the employer has to be bear. Avoidance of claims is therefore most desirable, greatly assisted by taking specialist advice at the earliest possible stage in a dispute, to minimise the risk of a claim and leave a paper trail of good evidence. Good training also reduces risk and you are invited to ring me to discuss tailor made in-house training, which I have always found highly appreciated by employers and their managers.

Frances Barker can be contacted on 01473 230033 or email

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This post was written by Frances