‘Gagging’ clauses, also known as non-disclosure agreements (NDAs), can be found in employment contracts, a separate standalone document more…
Legal advice for disciplinary procedures + Employment Tribunals for employers
As an employer, there may come a point when you need to take disciplinary action against an employee. This can be for minor issues, such as occasional lateness. Or it might be for more serious offences, such as workplace harassment or intimidation, unauthorised absence or gross misconduct.
Regardless of the seriousness of any transgression, it’s important that you follow correct disciplinary processes. Having written rules and procedures in place and ensuring that these are properly communicated to staff can help protect your business against legal action by a disgruntled employee.
If your employee believes that you haven’t followed correct employment procedures or that they’ve been treated unfairly, they may threaten to take you to an Employment Tribunal. If you are found to have acted improperly, you could be made to pay compensation, as well as suffering serious damage to your reputation.
How our employment solicitors can help you
Our specialist employment lawyers are experts in all aspects of employee disciplinary procedures. We can advise you on creating an effective disciplinary policy and procedures, including how this related to equality legislation.
If an employee claims you have treated them unfairly, we can advise you on whether you have a case to answer and how to proceed in the best way to protect your business. This usually includes negotiations with your employee to resolve the matter without the need for an Employment Tribunal (whether through a settlement agreement or COT3).
However, where an Employment Tribunal cannot be avoided, we can help gather all of the necessary evidence to support your case ahead of a hearing and represent you during the tribunal to help to achieve the best available outcome. We also have strong experience with Employment Tribunal appeals if you are unhappy with the outcome of a tribunal.
Get in touch with our employment solicitors in Bristol
Employment Tribunal Claims FAQS
What is an Employment Tribunal?
An Employment Tribunal makes decisions about all types of employment disputes, including claims of unfair dismissal and discrimination. Claims are heard by a panel of three members, who will be an employment judge, someone representing employer’s organisations and someone representing employee’s organisations. Employment Tribunals are public, meaning anyone can attend and they can be freely reported in the press.
Employees usually have 3 months less one day from the date of the alleged incident to bring a claim. If the claim relates to a pattern of behaviour, the time limit may be counted from when the most recent example is alleged to have occurred.
If the claimant only became aware of a potential issue sometime after it occurred, the time limit may be counted from this date instead (e.g. if they were overlooked for a promotion and later come to believe this was due to a protected characteristic such as their race or gender).
What sorts of claims does the Employment Tribunal deal with?
Employment Tribunals deal with a wide range of employment disputes, including in relation to matters such as:
- Unfair dismissal
- Maternity leave + paternity leave
- Workplace bullying + harassment
- Equal pay
What can an employer do to avoid an Employment Tribunal?
Before taking formal action, an employee should contact you to discuss the issue they believe has arisen. At this point, it is strongly advisable to contact our specialist employment solicitors. We can advise you on whether your employee’s claim has merit and whether they are likely to succeed at an Employment Tribunal.
If the employee appears to have strong grounds for a successful claim, we can help you negotiate a voluntary settlement agreement with them, allowing the matter to be resolved without the need for formal action. A settlement agreement protects you against the possibility of the employee bringing a claim for the issue in question, usually in exchange for a one-off payment to the employee.
If a settlement agreement cannot be reached, an employee will normally need to contact Acas (the Advisory, Conciliation and Arbitration Service) and attempt early conciliation before making a claim to an Employment Tribunal. Early conciliation will usually result in either a legal binding oral agreement or a COT3 form recording the terms of any agreement reached.
Generally speaking, most employment claims can be resolved without the need for you to attend a tribunal, which can save you time and money, as well as the potential for negative publicity.
How do settlement agreements work?
Settlement agreements replaced compromise agreements in July 2013 and offer a way to resolve employment disputes or head off potential employment disputes. A settlement agreement can be offered to an employee who has raised an issue, such as accusations of unfair dismissal, or it can be used where there is the potential for a claim e.g. when making someone redundant.
Settlement agreements will usually be drafted by a specialist employment lawyer and will usually offer a one-off payment to the employee in exchange for them agreeing not to bring an Employment Tribunal claim about the specific issue in question.
For a settlement agreement to be legally binding, it must:
- Be in writing
- Relate to a specific issue or issues (i.e. it cannot be a blanket agreement for the employee not to bring an employment claim for any reason)
- Only be signed by the employee after they have taken independent advice from a lawyer or certified, authorised trade union member
- Identify the employee’s adviser
- State the statutory conditions regulating the agreement
The employee will need to be given an appropriate amount of time to consider the agreement before signing. Acas recommends a minimum of 10 days for this.
How does Acas early conciliation work?
If an employee has contacted Acas (the Advisory, Conciliation and Arbitration Service) to resolve an employment dispute, you will be contacted by an Acas conciliator. They will work with you and your employee to see if an agreement can be reached to resolve the dispute voluntarily, allowing you to avoid the need for an Employment Tribunal.
An agreement you reach through Acas early conciliation will be legally binding and the details of the agreement will usually be recorded in a COT3 form.
What happens if you are taken to an Employment Tribunal?
If you cannot resolve an employment dispute with a settlement agreement or through early conciliation, you may be required to attend an Employment Tribunal.
This will involve both you and your employee presenting your cases to the tribunal panel, usually with the support of your respective solicitors. The panel will then decide whether the employee’s claim is justified or not.
What type of awards/recommendations can an Employment Tribunal make?
If the tribunal panel decides in favour of the employee, then depending on the circumstances you may be required to:
- Reinstate the employee into their previous role, on the same terms and conditions
- Rehire the employee in a new role with terms and conditions equal or better to those they were on previously
- Pay financial compensation to the employee
If the tribunal panel decide in your favour, that will usually be the end of the matter, unless the employee appeals the decision.
In some exceptional cases, the panel may require the employee to cover your legal costs. However, this will usually only be in circumstances such as if the employee brought a claim with no reasonable chance of success or if they withdrew their claim very late in proceedings when you had already spent a considerable amount on your legal costs.
What are ET1s and ET3s?
An ET1 is a form an employee will fill out to start an Employment Tribunal claim when they believe they have been treated unfairly by their employer, potential employer or their trade union.
An ET3 is the form you use as an employer to respond to an Employment Tribunal claim brought by an employee or a job candidate whom you chose not to employ.
How much does an Employment Tribunal cost an employer?
This will entirely depend on the circumstances, but we will try to give you a realistic indication of the likely costs involved at the earliest opportunity.
Please get in touch now to discuss your case and we will be happy to give a clear breakdown of our fees and various expenses involved in Employment Tribunal claims.
Can an employer appeal an Employment Tribunal decision?
If you are unhappy with the outcome of an Employment Tribunal hearing, we can advise you on whether you may have grounds to appeal. If we believe your appeal has a real prospect of success, we can help you take your case to the Employment Appeal Tribunal (EAT) for review.
You will usually have 42 days from the date when you receive the original Employment Tribunal decision to submit your case to the Employment Appeal Tribunal (EAT) for review.
An EAT hearing will involve presenting your case, usually with the support of a solicitor, and the employee will also be able to present their case. The EAT will then make a decision over whether to hold up the original Employment Tribunal’s decision or whether to offer a different decision.
If you are unhappy with the outcome of an EAT hearing, you can then apply to the Court of Appeal for a further review of your case. You do not have an automatic right to have your case reviewed by the Court of Appeal, however, so you will need to apply to the EAT or the Court of Appeal for permission to have your case reviewed.
Our employment tribunal expertise
We have decades of experience helping employers and employees to resolve all types of employment disputes. Having seen these issues from both sides, we can usually find a way to resolve a dispute that works for your business while be acceptable to an employee. This allows matters to be resolved faster, at lower cost and without the need for a tribunal hearing, helping to avoid the matter becoming public.
Our customers consistently provide positive feedback about our customer service, with more than 70% of our business coming via referrals from existing clients.
Barcan+Kirby is Lexcel accredited by the Law Society, reflecting the strength of our practice management and customer care, and we are independently regulated by the Solicitors Regulation Authority (SRA).
Contact our Employment Tribunal claims lawyers in Bristol
We work with businesses and all other types of employers in Bristol, South Gloucestershire and across the UK on all matters relating to disciplinary procedures, employment disputes and Employment Tribunal claims.