In nearly twenty years of advising businesses in HR and Employment Law, we’ve only ever had two cases that have got as far as an Employment Tribunal. Our clients won on both accounts, but it remains our absolute goal to keep employers out of Tribunal and to prevent issues ever escalating to that extent.

Since the abolition of fees to bring a claim in 2017, Employment Tribunal cases have steadily risen and the number of outstanding cases at the end of March 2021 was approaching 500,000.

The workplace disputes resolution service ACAS, recently organised a mock Employment Tribunal as a means of education and information, so we sent along our consultant Chloe Errington-Spurr, to investigate and report back on the experience.

Chloe’s first observation was that a Tribunal is a scary event. Even though the majority of cases are still being handled over Zoom, it’s still a proper courtroom situation with a lawyers and a judge; a judge led panel of three in discrimination cases. Lawyers are allowed a 30-minute cross-examination time and only the ACAS code bears any weight.

It’s worth noting that even if earlier attempts of conciliation have failed, parties can still agree to settle their claim arbitrability right up to the eve of the Tribunal date; so long as the settlement is notified to the court by 5.00pm.

Some of the key learnings that Chloe bought away from the event that should be applied by any organisation at the earliest stages of a disciplinary or grievance situation are:

• Employers must demonstrate that they have considered the employee’s feelings: Where cases are upheld, we’re more commonly seeing a compensation award being made for “injury to feelings”.
• Check on the expiration of previous disciplinaries: Earlier disciplinary measures against an employee can be taken into account but they have a sell-by date. The ACAS code of practice suggests 12 months for a final written warning and six months for other warnings. They should be disregarded after this or the Tribunal might hold it against you if they are not.
• Always follow due process: We’ve written previously about how cases can be lost because process has not been followed.
• Ensure that the punishment fits the crime: Over-zealous sanctions or measures that stray from your policies or culture will be looked down upon.
• Follow the appeal process: Always allow an appeal, and it should be heard by someone different to the person who heard the grievance and preferably of equal or higher standing.
• Meaningfully take into account the employees past record: Consider that a long and otherwise blemish-free employment history might beget some leniency for a first offence
• Be clear on the possible outcomes and consequences of a disciplinary action: We recommend you always state the worst possible outcome of a process at an early stage.

No two Employment Tribunals are ever likely to be exactly the same but we can see lots of similarities in how employers fail to prepare for cases that the subsequently lose. Indeed, the judge at the mock Tribunal was eager to list the top reasons why employers lose cases:

• Not following process or procedure
• Missing paperwork
• Incomplete timeline
• Incompetent managers
• Inability to communicate – events snowball and we get to a tribunal
• Not conducting a fair and meaningful investigation

We can’t stop employees entering Tribunal claims and as it’s effectively free to do so, there in no financial deterrent for entering spurious claims. However, we can make sure that we have followed due process and have all of our ducks lined up to ensure that either a defence solicitor will recognise that it’s a lost cause or the case gets thrown out at a preliminary hearing.

You can further prevent situations ever getting out of hand by giving your managers some basic HR knowledge so that they understand basic procedures and the potential outcomes of any decisions that they make. Our practical HR for Managers is the perfect course for this with content delivered in digestible, bite size sessions. See the details on our website.

In the meantime, if you have any issues for which you think an intervention now could save you a lot of expense and pain in the future, call us on 01452 331331 or drop us an e-mail to This email address is being protected from spambots. You need JavaScript enabled to view it.