The pitfalls of tribunal indemnity insurance
What is it tribunal indemnity insurance?
Tribunal indemnity insurance takes various forms.They range from insurance against all legal and compensation costs arising from a tribunal claim, to just simply covering legal costs or nothing at all because you didn’t follow the rules.
Because employment law can appear complex and full of tricky loopholes, the scaremongers selling tribunal indemnity insurance can have a field day. Many small and medium-sized businesses can’t afford the time and money involved in handling an employment tribunal. They may also worry about preserving their reputation and the negative impact a tribunal may have on their business.
As with any insurance policy, the first step is to think about the risk you are insuring against. It’s an easy decision for an electrical firm with a warehouse near a river to insure against flood damage. If there’s a flood, all of the stock could be wiped out and the business could go bust. The risk is high, and so is the potential cost of the insured event.
For business owners, it’s not so easy to quantify the risk and potential costs of a tribunal claim, so they go for peace of mind, and take the insurance. The reality is that there are many steps in the journey to an employment tribunal, and an employer who has sensible HR policies and procedures in place, and follows them, is at a very low risk of losing an employment tribunal claim. Even if the employer loses the claim and has to make a compensation payment, the costs are often not as high as expected.
The claim with the highest sum awarded was in a sex discrimination claim. These are technically uncapped, and can also include awards for injury to feelings. but the median awards in 2015/16 for Race Discrimination claims was £13,760 and for Sex Discrimination £13,500. Although there will always be media stories about huge successful claims, they are rare, and the median award is a more realistic indicator of potential financial risk. The median compensation payment for Unfair Dismissal claims in the same period was £7,332.
A pattern that is emerging is that more awards were issued to Claimants compared to Respondents. This is the case for the second year in a row, whereas in the past the majority of costs awards were made to the Respondents rather than Claimants.
The pitfalls of tribunal indemnity insurance
Pitfall 1 – you may not even need it
The electrical services company will not sit and watch the river rising or not worry about their stock, just because they have insurance. They will use sandbags, move the stock to higher shelves, and stand by with buckets to bale out the water as it flows in. Nobody wants to have to deal with the aftermath of a flood. It’s better to prevent the damage in the first place. If business owners took the same approach to people issues, and took notice and practical action early on, there would be little risk of a tribunal claim, and therefore little need for an insurance policy.
There are experts, like PlusHR, who can explain the rules, and help managers to take each step carefully, ensuring that employees are treated fairly and that the needs of the business are also met. This is equivalent to using sandbags.
If managers are not capable of handling an issue with performance, or there is a persistent problem, such as bullying and harassment, there are experts like PlusHR, who can provide training, coaching and even hand holding to help them. This is effectively like moving the stock to higher shelves.
If matters are so serious that the employee is likely to take a claim to tribunal, there are experts like PlusHR, who can help the business to evaluate the risk of a successful claim, and mediate between the employer and employee. If that doesn’t work they can negotiate the terms of a settlement agreement, making a financial payment to the employee to leave the business and waive all their rights to make a claim. This is not desirable, and costs money, but still salvages the situation, a bit like baling water with a bucket.
Pitfall 2 – all of your costs won’t be covered
If the tribunal claim goes ahead, there will be legal costs, but much more significantly, there will be huge management time lost in the preparation and aftermath of a tribunal – these costs will not be covered by the insurance. The impact on employee motivation, and even on management morale, which ultimately hits the bottom line of the business, doesn’t have a price, and therefore isn’t covered by the insurance.
Using a pragmatic, knowledgeable HR professional to avoid the problem will always be cheaper than paying a lawyer to fix it.
Pitfall 3 – insurance companies don’t like paying out
The real nub of the issue is this – there are so many ‘get out’ clauses in the tribunal indemnity insurance, that an employer runs a real risk of thinking they are covered, only to find that the insurance company gives lots of reasons why they won’t pay out.
If the insurance is offered as part of a HR service, there will be a big caveat stating that if the employer doesn’t consult the service provider and follow the employment law advice to the letter, the insurance will be invalidated.
This also means that the HR service provider is likely to sit on the fence, or tell their client what the law is, without committing to a recommendation, for fear of invalidating the insurance.
Some providers even proudly boast that they help their clients to make sure their paperwork is correct, so that if a claim goes to tribunal, they will have a ‘bundle’ already prepared, saving lots of time. It doesn’t save lots of time for the manager trying to do their day job. The rules become a pair of handcuffs, restricting their freedom of movement.
The vast majority of employees are reasonable people, who want to be treated reasonably by their employer. The vast majority of managers and business owners want to have happy, engaged employees. Surely everyone’s time and effort would be better spent building good relationships, ironing out misunderstandings, and dealing in a reasonable way with problems, than filling in forms, following scripts and ticking boxes to make sure that the tribunal insurance is not invalidated?
So in summary our advice is if you are looking at HR outsourcing providers don’t base your decision on fear. A good HR outsourcing provider will focus on how they can add value to your organisation and put your company on the path to ensure your business is legally compliant without the need to go to an employment tribunal. At PlusHR we are one of those HR outsourcing providers! We won’t try and convince you to sign up to our HR services based on fear – rather by showing you how we can add value to your business from day one. Don’t just take our word for it, read what our clients say here.