How should employers deal with weak claims?
Imagine this scenario: One of your employees, who had been with the company for only one year, performed poorly and made a number of serious errors for the business. You had given the employee a couple of warnings (though not in writing) and, unfortunately, there was no improvement. You therefore felt you had no choice but to let the employee go, and paid them off in lieu of their notice.
A month later you're completely shocked to receive a call from an Acas conciliation officer stating that the employee is alleging that they were treated differently because of their sex or race. The employee is looking for a years' salary. You almost fall off your chair.
There is no merit in the claim whatsoever. You have an even balance of men and women working for you. You have a number of employees from different ethnic backgrounds. You treat all your employees equally. You have had no previous complaints.
You accept that you didn't follow all the correct procedures, but the employee didn't have two years' continuous service to bring a general unfair dismissal claim.
Fighting the claim
The employer could call the employee's bluff, refuse to offer any money and see if the employee issues proceedings.
Now that the fee regime has been abolished it's of course easier for employees to bring claims.
If the employee does bring a claim, there could be a few tactics to consider.
Normally each party has to pay their own employment tribunal costs, and costs awards are still quite rare. The tribunal may, however, award costs where the person bringing the proceedings has acted vexatiously, abusively, disruptively or unreasonably or the claim has been misconceived.
In some cases it may be appropriate to write a costs warning letter to the Claimant or their representative. In the letter it would be important to set out an overview of the claim and the consequences of the Claimant pursuing their claim. Care needs to be taken about the tone and timing of a letter particularly if the Claimant is acting for themselves.
Another option could be to apply for a deposit order. If the tribunal considers that a particular allegation has little prospects of success the tribunal may order that the Claimant pays a deposit. If the Claimant then loses on that aspect of the claim this will be grounds for unreasonable behaviour and a costs award.
An employer may decide that it's better to pay the person off than defend a claim, even if the claim has no merit.
Defending tribunal claims can be very costly in terms of legal fees and management time. Many employers will therefore try and reach a quick commercial settlement, even if it's a bitter pill to swallow.
If a deal is struck any settlement sum should be paid without admission of liability and confidentiality obligations should be agreed too.
About the Author
Matt Gingell (www.mattgingell.com) is an experienced employment lawyer and legal commentator. Matt advises businesses and individuals on all employment law related issues. He also regularly writes articles and guides.