Dealing with workplace disputes
Employees who intend to take a grievance to an employment tribunal must now first notify the Advisory, Conciliation and Arbitration Service (Acas) in most cases.
The idea is that pre-claim conciliation will reduce the number of workplace disputes ending up in court. Early conciliation started by the employee effectively stops the clock on the time limit for presenting a claim to an employment tribunal. The conciliator has one month to achieve a settlement, although discussions can be extended for a further 14 days where there is a prospect of settlement.
Early conciliation is free. It can avoid the costs of going to a tribunal, and may be a very quick solution. There is also the prospect of restoring trust where an employee stays and the agreed outcome might, for example, include an apology – something that is not possible at a tribunal. And if conciliation fails, discussions are confidential and cannot be used in subsequent proceedings.
If a grievance ends up being decided by an employment tribunal, the employer will normally have to pay their own costs, even if they win. However, the tribunal can order an unreasonable claimant to pay the costs, and there have been some recent decisions on this issue – with mixed results for employers.
In Kapoor v The Governing Body of Barnhill Community High School, the employee was found to have lied to a tribunal in pursuing a discrimination claim, but this did not automatically constitute unreasonable behaviour. The employee’s appeal against the costs award therefore succeeded. In contrast, in the case of Vaughan v London Borough of Lewisham, costs were awarded against an employee because her discrimination and whistle blowing claims were found to have been misconceived.
Paying tribunal fees
Tribunal fees to lodge a claim or an appeal were introduced in July 2013, and employers normally have to reimburse these fees where decisions go against them. In Portnykh v Nomura International plc, the employer had to reimburse fees even though the appeal was only broadly successful and the employee lost on a few minor points.
This case also provided some useful guidance on the application of the ‘without prejudice’ rule. The basic principle is that a ‘without prejudice’ conversation undertaken with the intention of resolving an employment dispute is inadmissible in any subsequent proceedings. Nomura tried to have the conversations with the employee admitted as evidence by arguing that there was no dispute at the time when they took place. This argument was rejected because Nomura had already announced their intention to dismiss the employee for misconduct.
We are here to advise should you need help on handling these issues.